Drinan writes in "A Legislative Approach to Indigent Defense Reform," that indigent defense legal services are hobbled because of "drastic underfunding of indigent defense delivery systems; crushing attorney workloads that force committed defenders to compromise their ethical obligations on a daily basis; a lack of investigative and expert assistance; a chronic inability to develop meaningful attorney-client relationships; and, of course, unnecessary and sometimes unlawful imprisonment."
Drinan, an assistant law professor at Catholic University of America's Columbus School of Law, says a federal response is needed to shore up the nation's system and cites statements from Attorney General Eric Holder as hope that a robust federal response is forthcoming. Holder, Drinan writes, has said that reforming indigent defense is a top priority of the Department of Justice. She also cites the fact that the administration has created an initiative to reform indigent defense, which is spearheaded by Harvard law professor and constitutional law expert Laurence H. Tribe.
But Congress must also get involved in the matter. She notes that since the Supreme Court's landmark 1963 opinion, Gideon v. Wainwright, in which the Supreme Court ruled that states have an obligation under the Sixth Amendment to provide legal representation to poor criminal defendants that many states have abdicated those constitutional responsibilities. Indeed, she explains that in 16 states "more than half of the indigent defense costs are paid for by the county; and in two states, Pennsylvania and Utah, there is no state funding at all."
Drinan proposes in her ACS Issue Brief federal legislation that would help reform and bolster indigent defense. She writes that any such legislation "needs to incorporate several critical elements: (1) it must confirm that the burden of providing indigent defendants with counsel rests with the states; (2) it needs to give some weight to the notion of ineffective assistance of counsel without running afoul of Supreme Court precedent; (3) it must address who will be appropriate parties to a suit brought under the statute; and (4) it needs to address the question of appropriate remedies."
Some critics are likely to charge that such federal action to reform indigent defense services would infringe on state sovereignty, maintaining that criminal justice is typically within the realm of the states. But Drinan writes that such "criticism is undermined by the fact that the states have had nearly five decades to translate the Gideon mandate into practice, and they have failed to do so across the board with rare exceptions. States cannot avoid their obligations under the Sixth Amendment by raising a vague claim of states' rights."
Drinan's Issue Brief is available here. For further discussion of reforming legal services for the poor see video of two panel discussions from the 2010 ACS National Convention. Both panels included participation from Tribe, the Senior Counselor for Access to Justice at the U.S. Department of Justice. Video for the first panel discussion, "Legal Services for Low-Income People," is available here and see video for second panel discussion, "The Federal Role in Improving Indigent Criminal Defense," here. Also, the Southern Center for Human Rights President and Senior Counsel Stephen B. Bright talked with ACSblog about reforming indigent defense services following his participation in the "Federal Role" panel. His interview is available here.