Reclaiming Equality to Reframe Indigent Defense Reform (2013)

ABSTRACT & CITATION

This article argues that future legal challenges to indigent defense systems should be based on equal protection principles rather than on the right to counsel. Sixth Amendment arguments – either as Strickland claims of ineffective assistance of counsel or claims of deprivation of civil rights – have failed to make substantial reforms because, according to Lucas, precedent in this area dictates that courts must focus too narrowly on the objective reasonableness of a lawyer’s strategy in a given case, thereby ignoring systemic ills and the resources that constrain strategic decisions. Equal protection analysis, by contrast, can consider classes rather than individuals, and could address essential aspects of defense that are perhaps indirectly related to the effectiveness of a lawyer in any one case (e.g. funding for new technology in investigation, or manageable caseloads). Lucas demonstrates that, in the Warren Court era, the rights of indigent defendants were regularly founded on principles of equality, even if opinions were addressed to other parts of the Constitution – both the right to a fair trial and the right to counsel were thought to be a fiction where defendants could buy different levels of justice. Rather than treating the poor as a suspect class, decisions like Griffin v. Illinois treated access to courts as a fundamental right, and applied heightened scrutiny for that reason. Although the Court has curtailed equal protection relief since the Warren years, Lucas argues that an equal protection challenge to indigent defense systems is still viable under Griffin and its progeny. Asking courts to hand down far-reaching, normative guidelines for representation – “minimum constitutional standards for indigent defense” – is no small endeavor, but Lucas has faith that judges can, and must, employ their exceptional institutional knowledge and power in this context on behalf of disempowered minorities.

Lucas, L. S. (June 2013). Reclaiming Equality to Reframe Indigent Defense Reform. Minnesota Law Review, 97, 4, 1197-1267.