Parity of Resources for Defense Counsel and the Reach of Public Choice Theory

Abstract

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. The article asks whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources.

For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this must come from the legislature, so the article reviews the prospects for resource parity in the state legislatures. The odds that legislators will vote for such a law are surprisingly good, given the willingness of Tennessee and other jurisdictions to experiment with the idea.

The approach in this article is multi-disciplinary, using history, traditional case analysis, journalistic case studies, and a close review of public choice theory. The article explores more generally the applicability of public choice theory to crime legislation, and classifies criminal justice laws based on their different implications for this theory. Public choice theory has led to overbroad claims that "criminals always lose" in the legislative process; there are predictable settings where criminal defendants can benefit incidentally from laws favored by well-organized and influential interests such as the organized bar and judges.

Keywords: Defense Counsel, Legislation, Public Choice Theory, Remedies, Criminal Procedure

JEL Classification: K14, K41, N41