Sacrificial Lambs or the Chosen Few?: The Impact of Student Defenders on the Rights of the Accused

Abstract

In Gideon v. Wainwright, the Supreme Court declared that states must provide attorneys for indigent defendants accused of felonies in state court. Almost a decade later, the Court ruled in Argersinger v. Hamlin that a defendant could not be incarcerated unless he or she had been provided counsel. In a concurring opinion, Justice Powell observed that “(i)t is doubtful that the States possess the necessary resources to meet this sudden expansion of the right to counsel” and predicted that “backlogs” and “chaos” would result in the state courts. Professor Henry Monaghan noted presciently that “it is quite apparent that an army - a very large one - must be raised if the victory is to be a lasting one.” This Article examines the role of student criminal defense practitioners in providing much-needed representation to fulfill Gideon’s promise in the wake of over-burdened public defenders offices.

The number of law school criminal defense clinics and student criminal defense practitioners has increased dramatically since Gideon. This Article examines student performance in the Criminal Defense Clinic of New York University School of Law by comparing student lawyering with that of attorneys for indigent defendants in New York City’s criminal courts. This analysis enables clinicians to be satisfied that students are competent, effective advocates. It is also a valuable inquiry for criminal justice administrators who must monitor the effects of this practice and public defenders who may benefit from applying some of the lessons learned to their own institutional practices. Part I of the Article explores possible methods for comparing student representation with that provided by assigned counsel. It analyzes studies that have examined the quality of various types of criminal defense attorneys, and discusses the advantages and disadvantages of using an outcome-based analysis as opposed to one focused on the degree of effort expended and the type of work performed by the attorneys. Part II discusses the means used to collect the relevant data, and then compares the outcomes of cases handled by students with those of other defense attorneys. Part III analyzes the nature and quality of the performance of lawyering tasks by students and defense attorneys for the indigent. In the course of that analysis, the Article addresses the extent to which outcomes or results can be related to the effort put into the representation.

Keywords: criminal defense, indigent criminal defense, Criminal defense clinics, Gideon, student criminal defense practitioners, criminal justice system, public defender