For decades, scholars and practitioners have criticized the deplorable quality of legal representation available to poor criminal defendants across the country. Yet states continue to give short shrift to the constitutional rights of poor defendants. This article proposes a new piece of federal legislation designed to ameliorate the chronic inadequacies of public defense systems, while respecting federalism and leaving in tact the states’ ability to devise and implement appropriate public defense systems. The centerpiece of this proposed legislation is a cause of action in federal court that allows indigent defendants to seek equitable relief for systemic Sixth Amendment violations on a prospective basis. This paper proceeds in three parts. In Part I, I document the ongoing national crisis in public defense services and make the case for why Congress should tackle this crisis. The habeas system, currently the primary relief valve to police Sixth Amendment violations, simply is not set up for the task of vindicating the right to counsel. In Part II, I set forth the text of the proposed statute and address the mechanics of the statute in practice. In particular, I deal with the issues of who may sue and be sued under the statute; what constitutes a cognizable claim under the statute; and what a judicial remedy under the statute may look like given the abstention and separation-of-powers concerns in play. In Part III, I anticipate the reactions of two different camps: those readers who question the practical viability of this proposal and those who advocate alternative reform measures. I argue that Congress can enact this legislation pursuant to its civil rights enforcement authority and that there are reasons to be optimistic about its passage and its survival under judicial scrutiny. Finally, I conclude by reiterating a point that I have made in earlier works: systemic challenges to public defense systems require a federal forum. This legislation is designed to pave the way for such a forum, and even if Congress chooses not to pursue the path I describe herein, the federal government should continue to explore ways to bring such suits in federal court.
Cara H. Drinan, The National Right to Counsel Act: A Congressional Solution to the Nation's Indigent Defense Crisis, 47 HARV. J. ON LEGIS. 487 (2010).