2013 -- NATIONAL LEVEL
Washington and Lee Law Review
ABSTRACT & CITATION
This article offers a voice of dissent against the scholarly consensus that the failings of Gideon should be rectified by an expanded right to counsel and greater resources devoted to indigent defense. Instead, the author argues, reform efforts should focus on three systemic overhauls that are arguably more realistic. First, the Sixth Amendment right to counsel should be shrunk so that lawyers are guaranteed to defendants only where their skills are most needed – in felony jury trials that can result in more than six months’ imprisonment. The author emphasizes that it is not only indigent defendants who are failed by the current system, but middle class ones as well. Second, the procedure for smaller cases should be simplified and the judge’s role expanded so that litigants can navigate the system pro se. This variety of “inquisitorialism” would be borrowed from other countries’ judicial systems as well as American small claims and administrative law proceedings. Third, the bar should loosen its hold on who may provide legal services, so that paraprofessionals (like social workers and paralegals) can provide these services more cheaply and efficiently. Again, examples of this approach are found in other countries’ judicial systems and, by analogy, in American medical practice. Ultimately, the author argues that the best solution for providing meaningful assistance of counsel is to reshape the market for legal services so that highly-skilled lawyers are employed where they are most valuable.
Bibas, S. (2013). Shrinking Gideon and Expanding Alternatives to Lawyers. Washington and Lee Law Review, 70(2), 1287-1308.Topics: Assigned Counsel, Caseloads, Community Relations, Eligibility Requirements, Ethical and Professional Responsibilities, Experts, Funding, Investigation, Misdemeanors, Pro Bono, Pro Se, Resource Disparity, Salaries, State Court Decisions, Support Services, Supreme Court Decisions
Last revised: June 11, 2015 10:40 am