2007 -- NATIONAL LEVEL
Connecticut Law Review
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ABSTRACT & CITATION
This article proposes what the author describes as a “bright-line and classically judicial solution” to chronic underfunding of indigent defense: each year, if a state supreme court determines that its indigent defense system is underfunded, the court will declare that the standard of proof to convict an indigent defendant will be raised to “beyond all doubt.” To demonstrate adequate funding, the legislature could either meet national caseload standards for its defenders or equally fund defense and prosecution offices. Zealous prosecutors and tough-on-crime legislators would therefore, Gershowitz argues, join the defense bar in lobbying for greater funding for indigent defense systems. The article first details the disastrous effects of underfunding on the criminal justice system and indigent defendants in particular. It then describes attempts at systemic reform through litigation and explores why these attempts have failed or have produced ephemeral benefits. Gershowitz argues that his proposed reform would have more long-term success, because it is based on the institutional competence and powers of all three branches of government. First, he establishes that raising the state’s burden of proof in this manner would not run afoul of due process or equal protection principles. Second, he explains the practical details of his plan’s operation, which depends on a commission to oversee funding and report to the court. Finally, he argues that political forces will propel the long-term success of this reform, as long as voters support tough-on-crime policies.
Gershowitz, A. M. (November 2007). Raise the Proof: A Default Rule for Indigent Defense. Connecticut Law Review, 40, 1, 85-124.Topics: Appellate Court Decisions, Caseloads, Federal Court Decisions, Funding, Resource Disparity, State Court Decisions, Supreme Court Decisions
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Last revised: June 10, 2015 4:39 pm