Assessing the Indigent Defense System

The American Constitution Society for Law and Policy invites you to read:
Assessing the Indigent Defense System
An Issue Brief by:
Erica J. Hashimoto
ACS is pleased to distribute "Assessing the Indigent Defense System,"an Issue Brief by Erica J. Hashimoto, Associate Professor of Law at the University of Georgia School of Law. Professor Hashimoto's Issue Brief is the third in a series that ACS will be publishing focused on ideas for a role that the federal government can play in helping improve the indigent defense system around the country. Attorney General Eric Holder, Congress, and other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Professor Hashimoto examines the significant gaps that exist in the data available to evaluate the operation of the system and offers specific recommendations as to what the U.S. Department of Justice (DOJ), through its Bureau of Justice Statistics (BJS), can do to help improve the state of the data and assist with reform.

Professor Hashimoto observes that, "in spite of the fact that we live in an era that is preoccupied with data, we still lack data on the most basic questions related to the indigent defense system." She points out that we do not have the data to tell us "how many defendants are represented by the indigent defense systems" or "how many misdemeanor defendants have a right to counsel." As a result, we cannot determine "what percentage of defendants who are entitled to court-appointed representation go unrepresented." Professor Hashimoto asserts that the limited available data point to regular violations of the Constitution, but that "[w]ithout more complete data, it is impossible to adequately assess this fundamental constitutional right and know the extent of any violations around the country." She discusses several sets of data that are needed and ways in which DOJ and BJS could make significant improvements by collecting and analyzing these data. Professor Hashimoto recognizes that this will not be an easy or costless process, and that data cannot solve all of the problems with the indigent defense system, but concludes that "until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."

All of the Issue Briefs that ACS has published as part of this series, as well as other materials related to indigent defense, can be found by clicking here. For more information and to download the issue brief, click here.