Indigent Defense Invigorated: A Uniform Standard for Adjudicating Pre-Conviction Sixth Amendment Claims

Abstract

Despite the Sixth Amendment guarantee of the right to counsel, commentators have been documenting the shortcomings of indigent defense systems across the nation for decades: state and county underfunding leads to public defenders without essential resources, which in turn results in harm to indigent criminal defendants. Although a host of litigation brought by would-be reformers has sought improvements in county and state public defense systems, many of the claims have suffered from a lack of a clear governing standard. Some courts have relied on the “cause and prejudice” requirements of Strickland v. Washington, which governs post-conviction ineffective assistance of counsel claims, to great ill effect. This Article contends that rather than resorting to Strickland, claimants and courts should look to allegations of constitutional injury, not prejudice, under other well-settled criminal and civil standards. Those bringing criminal cases should look to the wealth of Sixth Amendment caselaw defining an individual’s substantive right to counsel; and those bringing civil cases should look to the law governing requests for prospective injunctive relief, specifically the need to allege the serious likelihood of irreparable harm – with an eye to the types of harm recognized in the Sixth Amendment criminal cases defining and individual’s substantive right to counsel.

Keywords: Sixth Amendment, Gideon, Strickland, Right to counsel, Ineffective assistance of counsel, pre-conviction