2011 -- NATIONAL LEVEL
NYU School of Law
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ABSTRACT & CITATION
This article argues that legal challenges to indigent defense systems be brought on separation of powers grounds rather than on due process or right to counsel grounds. Central to the author’s thesis is the idea that much of the Bill of Rights protects the public generally, not just discrete individuals, from executive branch tyranny. A significant role of courts in criminal cases, according to the author, is to be “auditors conducting investigating into the executive’s actions.” Since the United States operates using an adversarial judicial system, this audit wholly depends on the factual investigation of both sides. Therefore, when the legislative and executive undermine criminal defense fact investigation – by underfunding public defense, by illegally policing communities, by allocating extra resources to prosecutors, by overcharging defendants – these branches undermine the judicial function, and encroach on that branch’s power. Overburdened courts fail to check executive and legislative power, especially by allowing guilty pleas where there has effectively been no defense investigation. Guggenheim is clear that courts’ doctrinal decisions have seriously curtailed their own power of review of indigent defense systems, although they have remained vigilant in mandating funds for other judicial functions. He concludes by exploring the far-reaching implications of his thesis, including the reconsideration of the right to counsel in civil cases.
Guggenheim, M. (2011). The People’s Right: Reimagining the Right to Counsel. New York: New York University School of Law, Public Law Research Paper No. 10-65.Topics: Appellate Court Decisions, Caseloads, Experts, Federal Court Decisions, Funding, Independence of Defense Providers, Investigation, Resource Disparity, State Court Decisions, Support Services, Supreme Court Decisions
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Last revised: June 12, 2015 10:05 am