The National Right to Counsel Act: A Congressional Solution to the Nation’s Indigent Defense Crisis (2010)

ABSTRACT & CITATION

This article proposes a federal legislative remedy to the national crisis in indigent defense. The author calls this solution the National Right to Counsel Act, and sets out sample language for the statute. The centerpiece of the Act would be the creation of a right for a class of plaintiffs to sue states in federal court for violating the right to counsel. Federal courts would be allowed to hear pre-trial Sixth Amendment cases and grant equitable relief. These reforms would solve the jurisdictional issues that often thwart Sixth Amendment claims. The author responds to federalism concerns by arguing that Congress is empowered under Section Five of the Fourteenth Amendment to create this right of action and to abrogate states’ sovereign immunity. She adds that creating a right of action is a proportional response, in keeping with, for example, the approaches of the American with Disabilities Act and Voting Rights Act. Another attractive aspect of this proposal is that it can be construed as an economic measure: it would reduce errors in the criminal justice system while not requiring Congress to keep appropriating funds to support the states. These are some the features that, Drinan argues, make her proposal the “optimal reform effort” for public defense.

Drinan, C. H. (2010). The National Right to Counsel Act: A Congressional Solution to the Nation’s Indigent Defense Crisis. Harvard Journal on Legislation, 47, 2, 487-522.