The Appropriate Legal Standard Required to Prevail in a Systemic Challenge to an Indigent Defense System

The Appropriate Legal Standard Required to Prevail in a Systemic Challenge to an Indigent Defense System

By Stephen F. Hanlon*

The full text of this article can be found in PDF form here.

The United States Supreme Court has never ruled on the appropriate legal
standard for systemic challenges to state or local indigent defense systems.
One federal circuit court of appeals has ruled. Since 2010, at least four state
supreme courts, one state appellate court, and one federal district court have
considered this question. The United States Department of Justice filed a
Statement of Interest in the federal district court case and has filed an amicus
brief in two systemic challenges to state indigent defense systems. There are
several pending systemic challenges to state indigent defense systems around the country and more are contemplated.

This article will examine the various ways in which the courts have addressed this question, particularly since 2010. Section I of this article is a review of the major cases since 2010 that involve systemic challenges to indigent defense systems, either by classes of indigent defendants or by their attorneys, or both, seeking prospective
injunctive relief pre-trial. Section II analyzes and critiques those cases. Section III addresses class certification concerns after the Supreme Court’s 2011 decision in Walmart v. Dukes. Section IV articulates the argument for a risk-based claim that asserts systemic Sixth Amendment violations. Section V addresses the “dismiss and release” portion of the remedy urged here. And finally, Section VI concludes with a recommendation for future Sixth Amendment systemic challenges to state and local indigent defense systems.

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 *General Counsel, National Association for Public Defense, a national organization of more than 15,000 public defenders and other public defense officials. Mr. Hanlon also serves as the American Bar Association’s project director for the public defender workload studies described herein. He is also an adjunct professor of practice at Saint Louis University School of Law. The author wishes to express his gratitude for the review and editing of this article by Norman Lefstein, professor of Law and dean emeritus of the Indiana University, Robert H. McKinney School of Law; Margaret Winter, former associate director of the ACLU National Prison Project; Roger L. Goldman, Callis Family Professor of Law Emeritus, Saint Louis University School of Law; Malia Brink, Assistant Counsel for Public Defense, Standing Committee on Legal Aid and Indigent Defendants, American Bar Association; and Maureen Hanlon (no known relation to the author), a law student at Saint Louis University School of Law.

The views expressed herein are those of the author himself, and all errors of judgment or otherwise are his and his alone. The author also wishes to express his gratitude to the Laura and John Arnold Foundation for its support of his work in Louisiana referred to below, which was the catalyst for this article. Again, the views expressed herein are not necessarily those of the Foundation.