“Litigation Strategies for Dealing with the Indigent Defense Crisis

Eve Brensike Primus Professor of Law, University of Michigan Law School

September 29, 2010

ACS is pleased to distribute “Litigation Strategies for Dealing with the Indigent Defense Crisis,” by Eve Brensike Primus, Assistant Professor of Law at the University of Michigan Law School. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants. Indeed, on Monday, the Justice for All Reauthorization Act of 2010 was introduced in the Senate and it includes provisions for which the author advocates.

In her Issue Brief, Professor Primus explores “two potential federal legislative initiatives that could help remedy the indigent defense crisis in this country”: “a federal enforcement action that would allow DOJ (or a private litigant deputized to act on its behalf) to seek equitable relief in federal court whenever a state engages in a pattern or practice of conduct that deprives criminal defendants of their right to effective counsel” and “a new post-trial federal habeas corpus cause of action designed to redress systemic right-to-counsel problems.” Professor Primus explains why access to a federal forum is necessary and the obstacles that have existed until now to federal court review. She also discusses how her proposals can overcome the obstacles and catalyze reform by the states. She concludes that “[p]art of ensuring meaningful long-term reform requires giving indigent defendants access to a federal forum to challenge systemic state practices that routinely violate their right to effective trial counsel.”

Read the full Issue Brief here: Litigation Strategies for Dealing with the Indigent Defense Crisis