Indigent Representation: A Growing National Crisis


Chairman Scott, Ranking Member Gohmert, and Members of theCommittee and Subcommittee, thank you for the opportunity to speaktoday on the subject of indigent representation in criminal cases.My name is Erik Luna, and I am a law professor at Washington andLee University School of Law and an adjunct scholar with the CatoInstitute.1 I specialize in criminal law, criminalprocedure, and allied areas of law and public policy. It is anhonor to participate in today's hearing with such a distinguishedgroup of witnesses and before an audience that includes some of theleading researchers and activists in the area of indigentdefense.

I come before you as an advocate for the constitutional valuesthat protect both individual liberty and limited government. As forthe former, I am a firm believer in the Sixth Amendment right tocounsel and the constitutional duty of the state to providecompetent legal representation to indigent defendants whose libertythe prosecuting jurisdiction seeks to deprive.2 Indeed,I might go further than some. Among other things, it is problematicthat the impoverished may be convicted without counsel, their namessullied and future opportunities jeopardized, simply becauseincarceration does not ensue.3 But fidelity to the U.S.Constitution does not begin and end with the Bill of Rights. Otherconstitutional values, like federalism, not only ensure limitedgovernment but also provide structural protection of liberty bypreventing the concentration of power in either state or federalgovernment.4It is the interaction between theseconstitutional values, as well as policy considerations regardingincentive structures and interests, that may be the most difficultissue in this hearing and, in all honesty, the reason we are heretoday.

1. The Sixth Amendment Aand Indigent DefenseRepresentation

At the outset, it is important to express my agreement with muchof the critical commentary in this area, including the Report ofthe National Right to Counsel Committee ("NRCC") and the opinionsexpressed today by my fellow panelists. As the Supreme Court oncesaid, "[t]here can be no equal justice where the kind of trial aman gets depends on the amount of money he has.5 And itis just as true today as it was in 1963 that defense attorneys are"necessities, not luxuries," in the criminal process:

[I]n our adversary system of criminal justice, anyperson haled into court, who is too poor to hire a lawyer, cannotbe assured a fair trial unless counsel is provided for him. Thisseems to us to be an obvious truth. Governments, both state andfederal, quite properly spend vast sums of money to establishmachinery to try defendants accused of crime. Lawyers to prosecuteare everywhere deemed essential to protect the public's interest inan orderly society. Similarly, there are few defendants chargedwith crime, few indeed, who fail to hire the best lawyers they canget to prepare and present their defenses. That government hireslawyers to prosecute and defendants who have the money hire lawyersto defend are the strongest indications of the wide-spread beliefthat lawyers in criminal courts are necessities, notluxuries…. From the very beginning, our state and nationalconstitutions and laws have laid great emphasis on procedural andsubstantive safeguards designed to assure fair trials beforeimpartial tribunals in which every defendant stands equal beforethe law. This noble ideal cannot be realized if the poor mancharged with crime has to face his accusers without a lawyer toassist him.6

Nearly a half-century later, however, there are Americanjurisdictions where the impoverished defendant receives the facadeof legal representation, which at best meets the letter of theSixth Amendment right but certainly not its spirit, and at worstfails to maintain even the pretense of constitutional compliance.Echoing other compelling works,7 the NRCC Report provides acomprehensive and, in many ways, brilliant review of indigentdefense in jurisdictions across the nation.8 Theproblems it details should be disconcerting to anyone who caresabout criminal justice: inadequate compensation and excessivecaseloads for defense lawyers; the lack of resources forinvestigators, expert witnesses, interpreters, and support staff;the absence of meaningful training programs, oversight, andperformance standards; incompetent and unethical lawyering; andundue judicial involvement and interference with the defensefunction.

Most of these problems stem directly from parsimoniousdecision-making and grossly insufficient funding by the states. Asa result, defense counsel are poorly compensated, to the point thatsome cannot make ends meet or have to take on caseloads thatviolate their professional duties to their clients. The ultimateconsequences are borne by indigent defendants themselves - wholanguish in jail before being assigned an attorney and who havelittle if any meaningful contact with that attorney; whose casesare insufficiently investigated and whose legal claims gounexplored; and who receive representation that is, in the words ofthe NRCC Report, "perfunctory and so deficient as not to amount torepresentation at all."9 All of this constitutes adeprivation of procedural justice, with indigent defendantspropelled through a process that lacks many of the hallmarks of adecent legal system. Even more troubling is the potentialdeprivation of substantive justice. Without competentrepresentation, individuals may be inappropriately charged orexcessively punished, and viable legal and factual defenses maynever be raised. Most alarming is the possibility of convicting theinnocent, the worst of all miscarriages of justice. With twodecades of DNA-based exonerations, it is now clear that shoddydefense lawyering is a major contributor to wrongfulconvictions.10

2. Recommendations

The NRCC Report offers a somber evaluation of jurisdictions thatfail to meet their obligations under the Sixth Amendment. I findthe situation deeply disturbing and suspect this sentiment isshared by many in the room, regardless of political party. The realissue, then, is not whether a "constitutional crisis" exists, butwhat entity created the dilemma and what should be done to resolveit - in other words, questions of responsibility and remedy. Likeprevious works, the NRCC Report sets out a series ofrecommendations to deal with the problems of indigent defense.Almost all are unobjectionable, if not laudable, including: thecreation of a state board or commission responsible for indigentdefense services; the establishment of qualification, performance,and workload standards for defense counsel; the promptdetermination of eligibility and assignment of counsel for indigentdefendants; the collection of data on cases involving indigentrepresentation; the adoption of open file discovery policies inprosecutorial offices; the obligation of defense counsel to refuseexcessive caseloads; and the duty of all criminal justice actors toensure against ethical violations implicating the rights ofindigent defendants.11

In the following, I would like to highlight severalrecommendations that deserve special attention in this hearing.

A. What States MustDo

Among its recommendations, the NRCC Report states that"legislators should appropriate adequate funds so that qualityindigent defense services can be provided,"12 whichwould include fair compensation for counsel and resources for thoseservices necessary for effective legal representation (e.g.,independent experts and investigators).13 My onlyquibble with the relevant recommendations is the use of the wordshould rather than must. By and large, these arenot aspirational norms but instead mandatory duties, based on thestates' fundamental obligation to provide sufficient funds forcompetent indigent representation. Under Gideon v.Wainwright,14Griffin v.Illinois,15Ake v. Oklahoma,16and their progeny, an indigent defendant has the constitutionalright to appointed counsel, state-provided expert witnesses, andother services that assure "a fair opportunity to present hisdefense" and "the opportunity to participate meaningfully in ajudicial proceeding in which his liberty is at stake."17From the attorney's perspective, the failure of the state to payfor the necessary expenses associated with indigent representationmay amount to an unconstitutional taking ofproperty.18

Not only is it constitutionally required that the relevantjurisdiction pay for expenses related to indigent defense, it isaltogether fitting. After all, the states and their agents are theones who set the entire process in motion and have made all of thechoices that have resulted in the current "constitutional crisis."State lawmakers determine what will be a crime in the first place,as well as the principles of culpability and degrees of punishment.They decide the amount of funding for courts, jails and prisons,and all levels of law enforcement. In turn, state executives choosewhich individuals will be propelled into the criminal justicesystem, with police officers using their power to investigate andarrest and state attorneys exercising their authority to charge andprosecute. As a matter of federal constitutional law, the stateshave no obligation to criminalize and punish any particularbehavior, nor are they required to arrest and prosecute any givenindividual. But when jurisdictions choose to employ the awesomepower to deprive individual liberty, they have an absolute duty tocomply with the U.S. Constitution, including the Sixth Amendmentright to counsel.

In practice, the states have brought any crisis upon themselvesthrough, inter alia, overcriminalization19 - abusing thelaw's supreme force by enacting dubious criminal provisions andexcessive punishments, and overloading the system with arrests andprosecutions of questionable value. State penal codes have becomebloated by a continuous stream of legislative additions andamendments, particularly in response to interest-group lobbying andhigh-profile cases,20 producing a one-way ratchet towardbroader liability and harsher punishment. Lawmakers have a strongincentive to add new offenses and enhanced penalties, asconventional wisdom suggests that appearing tough on crime fillscampaign coffers and helps win elections, irrespective of theunderlying justification. Law enforcement also has an interest in amore expansive criminal justice system, with the prospects ofpromotion (or reelection) often correlated to the number of arrestsfor police and convictions for prosecutors.21

As a result, the United States has now become the most punitivenation by virtually every measure and the world's leader inincarcerating its own population,22 all during a time ofdecreasing rates of violent and serious crime.23 TheNRCC Report notes that a significant percentage of inmates arelocked up not for committing new crimes but for violating the termsof their release, often for rather trifling infringements likemissing a scheduled appointment with a parole or probationofficer.24 The Report also discusses theovercriminalization of low-level misconduct, from riding bikes onsidewalks to driving on a suspended license.25 The NRCCReport does not mention, however, the single greatest criminaljustice boondoggle of all time: the multi-billion dollar "war ondrugs" that overloads court dockets around thenation.26

But just as the states have the ability to create and enforcecriminal provisions, no matter how picayune, they have the power toprovide the necessary resources for defense counsel, to pare backtheir bloated penal codes and reduce lengthy sentences, and to bemore prudent in the enforcement of criminal laws on the streets andin courthouses. Despite current economic straits, there should beno doubt that the relevant jurisdictions can provide the funds forcompetent indigent representation. State lawmakers have always hadthe means to do so but have chosen not to meet their constitutionalobligations. As the NRCC Report notes, "[i]n the competition forstate funds, indigent defense is frequently at the back of theline."27 Prosecutors typically receive far greater statefunding than defense counsel, leading to disparities in salariesand number of attorneys;28 and needless to say, thestates pay vast sums for legal work and programs that are notconstitutionally required.29 Moreover, the states candecriminalize conduct that poses little or no risk to publicsafety, which the NRCC Report recommends30 and somejurisdictions have in fact done.31

In the end, the states can and must provide the necessaryresources for defense counsel, whether by increasing funding ofindigent representation or by reducing the number of criminal casesand thus the need for defense counsel in the first place. If theyrefuse to do so, a different set of NRCC recommendations should bepursued, specifically, those involving litigation.32 Therecalcitrant state officials should be held to answer in theappropriate tribunal pursuant to a simple but essential ideal: Ajurisdiction may not deprive individuals of their liberty through aprocess that denies basic rights, including the Sixth Amendmentright to counsel.

B. What Congress Should NotDo

The NRCC Report also recommends that the federal governmentprovide substantial financial support for indigent representationin state criminal justice systems,33 including thecreation of "an independent, adequately funded National Center forDefense Services."34 This reiterates a long-standingproposal by the American Bar Association, as well as acongressional bill sponsored by Sen. Kennedy and Rep. Rodino in1979-80.35 On its face, federal funding might appear tobe a sound public policy to address the dilemma of indigentrepresentation in various places around the nation. And givensupporting institutions like the ABA and the gravitas ofcongressional and scholarly36 advocates of the past andpresent, I am reticent and duly cautious in any disagreement withtheir collective wisdom. Nonetheless, I will briefly discuss someof my concerns regarding the call for federal involvement in thestate criminal defense function, which is premised, I believe, onthe widely held and often erroneous assumption that a crisis inAmerica necessarily requires congressional action.

To begin with, I have a seemingly small but nonethelessimportant difference of opinion about the predicate for federalfunding. The NRCC Report refers to the right to appointed counsel,first articulated in Gideon, as a "significant, high-cost,unfunded mandate imposed upon state and/or localgovernments."37 It is an ingenious argument - attemptingto analogize constitutional decisions of the U.S. Supreme Court torequirements imposed on the states by Congress - but in the end, itproves too much. As typically understood, federal unfunded mandatesare the product of the discretionary actions of Congress andvarious federal agencies, coming in the form of normal positive law(i.e., statutes or regulations). In contrast, the Supreme Court'sconstitutional decisions are interpretations of the fundamental lawof the land, the U.S. Constitution, which the states adopted at theframing and all state officers support by oath.38

The Court may have announced Gideon, but it is theSixth Amendment that requires the states to provide for indigentrepresentation. This is no more an "unfunded mandate" than, forinstance, the Eight Amendment command that prisoners be providedfood and other human necessities that draw upon state funds.Indeed, almost every constitutional guarantee in the criminalprocess, especially the full panoply of trial rights (e.g., speedyand public trials, compulsory process, impartial juries drawn froma fair cross-section of the community, etc.), imposes affirmativecosts on the relevant jurisdiction.39 Of course, itwould be a nonstarter to claim that Congress thereby has anobligation to compensate the states for their criminal trials andprisons. Instead, the states assume these expenses by choosing tooperate a justice system and forcing individuals through thecriminal process.

Not only is federal funding of state indigent defense notrequired by the Constitution, it raises issues related to theconstitutional principle of federalism. Grounded in the text andcontext of the nation's charter, federalism limits the powers ofnational government and prevents federal interference with the coreinternal affairs of the individual states.40 Since thefounding, the Supreme Court has declared on a number of occasionsthat the federal government does not have a general policepower.41 Among the areas that the Framers sought toreserve to the states was "the ordinary administration of criminaland civil justice."42 In more recent times, the SupremeCourt has reiterated these limitations on federal involvement inlocal criminal justice matters, given that the "[s]tates possessprimary authority for defining and enforcing the criminal law." Assuch, constitutional concerns are raised whenever Congress effects"a significant change in the sensitive relation between federal andstate criminal jurisdiction."43

There are various arguments in favor of federalism in this area- such as pluralistic decision-making and localexperimentation44 - that may be impeded by federalinterference with state criminal justice systems, which inevitablyimplicate norms and values that vary by jurisdiction. Mostimportantly, it may jeopardize "the principal benefit of thefederalist system,"45 the protection of individualliberties. Federalism and its allied doctrine, the separation ofpowers, create multiple layers of government, all duty-bound to thepeople rather than to each other. This provides a structural checkon every level of government, preventing the concentration of powerand the ensuing danger of tyranny.46

These are not idle musings. As I understand it, the proposedNational Center for Defense Services will not just be a task force,fact-finding committee, study commission, or center in the mold ofacademe. Rather, the Center will be a comprehensive, fully fundedentity with the financial authority "to help the states defray thecosts of defense services in criminal and juvenile cases,""providing grants, sponsoring pilot projects, supporting training,conducting research, and collecting and analyzingdata."47 In other words, it will be a federalbureaucracy with the authority to make and enforce policy, and todispense and control millions (if not billions) of dollars.Although the proposal is extremely well-intentioned, caution iswarranted in creating any federal body with such powers outside ofthe basic constitutional framework.

Government bureaucracies tend to be acquisitive andmonopolistic, seeking to maximize their funding and expand theirpowers. They also create agency costs, serving the self-interestsof bureaucrats rather than their principals (i.e., Americantaxpayers). And in the end, bureaucracies have a tendency towardentrenchment and are almost impossible to eliminate or meaningfullyreform after their formation, becoming part of an "iron triangle"between themselves, interest groups, and congressional committees.This is not to say that a National Center for Defense Servicescannot be the exception. But relatively recent experience withfederal criminal justice bureaucracy - namely, the U.S. SentencingCommission qua "junior varsity Congress"48 - has beenless than spectacular.

Federal funding in the present context also raises questions ofincentive structures. There are circumstances where federalinvolvement might not only fail to improve a particular problem butmay also exacerbate a larger structural infirmity. Congressionalfunding of indigent defense in a given jurisdiction serves as asort of "bailout," where one entity (the federal government)rescues another entity (a state) from its financial distress. Theinstitutional beneficiaries, state lawmakers, are not viewed withthe level of skepticism currently focused on corporate America. Butas with other, more typical bailouts, congressional funding hereraises the specter of moral hazard, the economic phenomenon thatcan be succinctly defined as "the distortions introduced by theprospect of not having to pay for your sins."49

If a given state does not bear the full costs of its criminaljustice decisions and instead is able to externalize a politicallydisagreeable expense on another entity - in this case, passingalong the funding of state indigent defense to the federalgovernment - state officials may have little incentive to tempertheir politically self-serving decisions that extend the criminaljustice system. In a worst-case scenario, those states that havemet the constitutional requirements may be tempted to skimp ontheir own budgeting for indigent representation with an eye towardreceiving federal support. This is all the more troubling giventhat, as mentioned above, deadbeat jurisdictions could meet theirconstitutional obligations: They could fully finance indigentrepresentation through increased taxes or the diversion of fundsallocated for other items. Or they could reduce the number ofdefendants and thus the need for indigent representation by meansof decriminalization, diversion, lower sentences, and temperedenforcement. Obstinate jurisdictions have chosen neither option,however, doubtlessly because such actions are viewed as badpolitics.

Moreover, there is a real question of fairness if the federalgovernment were to bail out states that have failed to hold uptheir constitutional responsibilities: Why should citizens in astate that meets its Sixth Amendment-based financial obligationshave to pay for a state that does not? Under mostcircumstances, it would be curious (if not perverse) for thefederal government to provide funding to a state precisely becauseit violates the Constitution. Imagine, for instance, a countysheriff's department that has the ability to provide jail inmatesadequate food, clothing, shelter, and so on, but refuses to do sofor political reasons. Or imagine a police department thatsystematically violates the Fourth Amendment rights of pedestriansand motorists. The appropriate response would not be to providethese entities federal funds to, respectively, maintain humaneconditions of confinement and refrain from conducting illegalsearches and seizures. Instead, they should be given an ultimatum:Meet the constitutional requirements or face, among other things,civil rights litigation.

3. Concluding Thoughts

To be clear, federalism in no way relieves a jurisdiction of itsobligations to comply with other constitutional principles, such asthe right to counsel. So let me reiterate: The states can and mustensure that criminal defendants receive the type of representationdemanded by the Sixth Amendment. Moreover, I am not claiming thatthe courts would invalidate congressional funding on federalismgrounds. As a doctrinal matter, Congress's Article I spendingpowers are essentially unfettered. Instead, the constitutionaldesign and underlying principles caution against the federalgovernment becoming entangled in the internal affairs or assumingthe core functions of the states. The values of pluralisticdecision-making and localism, as well as the danger of too muchpower in too few hands, are not trifling and should not bedisregarded lightly.

In turn, the public policy considerations mentioned above areonly broad and somewhat abstract, stated in the absence of aconcrete budget proposal, not the inexorable results of federalfunding for state indigent defense. Opposing arguments may point tohopelessly dysfunctional political processes at the state level,for instance, or various legislative techniques that might avoidperverse incentives for funding recipients. My mind remains open onthis issue, and, of course, the devil of any legislation would bein its details. Nonetheless, Congress should consider theunintended consequences and inter-jurisdictional equity ofabsorbing the costs owed by a given state, resulting from thepolitical choices and neglect of its officials, when that state canand, in all good conscience, should pay the bill.

As described upfront, I am a staunch believer that impoverisheddefendants have the right to competent and appropriatelycompensated counsel. Although federal involvement in state indigentrepresentation is problematic on a number of grounds, I will notlose sleep if Congress were to create and fund the National Centerfor Defense Services. The proposal may be flawed as a matter ofconstitutional principle and public policy, but at least it isbased on good intentions and aimed at real constitutionalviolations. Before closing, however, I would like to brieflymention a few suggestions on what Congress can do without raisingthe aforementioned issues of constitutional law and publicpolicy.

A. Stop Federal Grants to State CriminalJustice

The NRCC Report describes resource inequities betweenprosecutors and defense counsel, sometimes resulting from specialfunding to pursue particular programs, such as drug enforcement. Itthen recommends that "the level of federal funding for prosecutionand defense should be substantially equal."50 I agree -although rather than increasing spending for the defense function,the federal government should get out of the business of fundingstate criminal justice programs altogether. In general, federalgrants to state and local government spur wasteful spending onoverblown or altogether unnecessary programs, reduce the diversityof policies and the motive for innovation, breed layeredbureaucracies and opportunities for questionable congressionalearmarks, and blur the lines of governmentresponsibility.51 They also skew state and localpolicymaking toward federal goals, regardless of the wishes andbest interests of the affected citizenry. Worse yet, federalfunding under the "Byrne Justice Assistance Grant" program hasunderwritten law enforcement corruption, racial discrimination,civil rights abuses, and wrongful convictions, epitomized by themassive miscarriage of justice in Tulia, Texas.52 Forthe most part, state and local officials should determine policyfor their criminal justice systems, unaffected by the federalgovernment; and they alone should bear the costs and consequencesof these decisions.

B. Civil RightsLitigation

The third chapter of the NRCC Report provides a thorough reviewof litigation efforts to force recalcitrant states to meet theirSixth Amendment obligations.53 After analyzing bothsuccessful and failed efforts, it lays out a series of principlesto enhance the possibility of systematic improvements. This is afitting approach, with the precise entity responsible for thecondition of indigent representation, state government, held toanswer for its failure to abide by the Sixth Amendment. Inaddition, the Report discusses the most prominent federal civilrights statute, 42 U.S.C. §1983, as a viable cause of actionand goes on to suggest that "if state courts abdicate theirresponsibilities, federal courts may be willing to enforce theright to counsel through a habeas corpus petition or class actioncomplaint."54

Not all litigation along these lines has been successful,including lawsuits brought in federal court;55 and theoutcome is uncertain in two pending state cases alleging violationsof the Sixth and Fourteenth Amendments and causes of action under§1983.56 If it turns out that such litigation isfailing in state or federal court not because of factualdeficiencies but due to prudential barriers (e.g., Youngerabstention)57 or limitations in the underlying federalstatute, Congress could consider enacting a new cause of action toenforce the Sixth Amendment. Furthermore, the U.S. Department ofJustice might begin examining whether certain jurisdictions aresystematically violating the Constitution by failing to providesufficient resources for indigent representation.

C. Federal Government as RoleModel

Whether or not federal action ensues, today's hearing serves aworthy agenda: investigating the problem of indigent representationin state criminal justice, placing the spotlight on those stateswith deficient systems and encouraging them to comply with theirconstitutional obligations, and even providing material forjudicial decision-making. But Congress can also be an exemplar forthe states by reexamining the federal criminal justice system.According to a recent estimate, there are at least 4,450 federalcrimes in the U.S. Code,58 a number that would beoutrageous in a jurisdiction with a general police power.Particularly troubling are those crimes that duplicate state lawsor dispense with traditional constraints on culpability, such as amens rea requirement.59 Moreover, federal sentencing isin real need of reform to replace the virtually incomprehensibleU.S. Sentencing Guidelines regime as well as the inflexible andoften draconian mandatory minimum sentences.60 In fact,Members of this Subcommittee have sponsored bills that seek toaddress mandatory minimums and provide a more just sentencingscheme. By reforming the federal criminal justice system, Congresswould be offering a valuable and perfectly constitutional serviceto the states - the federal government as role model, not dictatoror underwriter.

Likewise, I would encourage Congress to support Sen. Webb'sproposal to create a "National Criminal Justice Commission." Thisbody would be a true task force or study commission, rather than anew administrative agency. According to the bill's text, theCommission would:

undertake a comprehensive review of the criminaljustice system, make findings related to current Federal and Statecriminal justice policies and practices, and make reformrecommendations for the President, Congress, and State governmentsto improve public safety, cost-effectiveness, overall prisonadministration, and fairness in the implementation of the Nation'scriminal justice system.61

It has been some time since the last comprehensive governmentalstudy of American criminal justice, and as discussed above, thepast few decades have seen the federal and state systems takingturns for the worse. Obviously, the topic of today's hearing is ofcritical importance and could be part of the Commission's charge.But the crisis of indigent representation is the proverbial tip ofthe iceberg, and any attempt to deal with that issue in isolationmay well miss the massive problems that lie beneath. Although itfaces a daunting challenge, the proposed Commission seems wellworth the effort.

Again, thank you for the opportunity to speak today. I lookforward to answering any questions you may have.


  1. All opinions expressed and any errors herein are my own.
  2. Gideon v. Wainwright, 372 U.S. 335 (1963).
  3. Contra Scott v. Illinois, 440 U.S. 367 (1979).
  4. See, e.g., THE FEDERALIST No. 28, at 180-81 (AlexanderHamilton) (Clinton Rossiter ed., 1961); id., No. 51, at 323 (JamesMadison).
  5. Griffin v. Illinois, 351 U.S. 12, 19 (1956) (requiringstate to provide trial transcript to indigent defendant based onconstitutional guaranties of due process and equalprotection).
  6. Gideon, 372 U.S. 344. See also Powell v.Alabama, 287 U.S. 45, 68-69 (1932).
  9. Id. at xii.
  10. See, e.g., Lewis, A. Kaplan, Wrongful Convictions and theRight to Counsel, N.Y. L.J., May 6, 2009; JIM DWYER, PETERNEUFELD & BARRY SCHECK, ACTUAL INNOCENCE ch. 9 (2000).
  11. See JUSTICE DENIED, supra, at 185-90, 191-94,197-98, 197-98, 202-07 (Recommendations 2-3, 5-6, 9, 11,14-16).
  12. Id. at 183 (Recommendation 1).
  13. See id. at 194-97 (Recommendations 7 and 8).
  14. 372 U.S. 335 (1963).
  15. 351 U.S. 12 (1956).
  16. 470 U.S. 68 (1985).
  17. Id. at 76. But cf. Caldwell v. Mississippi,472 U.S. 320 (1985).
  18. See, e.g., Williamson v. Vardeman, 674 F.2d1211 (8th Cir. 1982).
  19. See, e.g., Erik Luna, The OvercriminalizationPhenomenon, 54 AM. U. L. REV. 703 (2005).
  20. See, e.g., Paul H. Robinson & Michael T. Cahill,Can a Model Penal Code Second Save the States fromThemselves?, 1 OHIO ST. J. CRIM. L. 169 (2003).
  21. In addition, officials sometimes have a financial incentive topursue low-level violations with impunity. See, e.g.,Howard Witt, Driving Through Tenaha, Texas, Doesn't Pay forSome, L.A. TIMES, Mar. 11, 2009; David A. Harris, "DrivingWhile Black" and All Other Traffic Offenses: The SupremeCourt and Pretextual Traffic Stops, 87 J. CRIM. L. &CRIMINOLOGY 544, 561-63 (1997).
  22. See, e.g., Adam Liptak, Inmate Count in U.S.Dwarfs Other Nations', N.Y. TIMES, April 23, 2008. At thebeginning of 2008, the United States had an adult inmate populationof 2.3 million people, meaning that one out of every 100 Americanswas incarcerated. To put things in perspective, if you placed aprison wall around North Dakota, South Dakota, and Wyoming andcounted every single person as an inmate, it would still not equalthe nation's total prison and jail population - but the number getsclose by adding, say, American Samoa, Guam, and the U.S. VirginIslands as penal colonies.
  23. See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS (online)tbl. 3.106.2007, available at (hereinafter"SOURCEBOOK").
  24. See JUSTICE DENIED, supra, at 71.
  26. In 2007, 1.8 million American were arrested for drug violations(80% for possession). See SOURCEBOOK, supra, at tbls. 4.1.2007& 4.29.2007. In recent years, state drug offenses haveaccounted for a third of all felony convictions and at least oneout of every five inmates. See, e.g, id. at tbls. 5.44.2004, 6.20,6.0001.2005.
  27. JUSTICE DENIED, supra, at 57.
  28. See, e.g., id. at 61-64.
  29. See, e.g., Stephen Bright, Georgia BeggarsIndigent Defense: As Lawyers for the Poor Get a Pittance,Prosecutors Enjoy a Blank Check, Want to Pick Opponents, DAILYREP. (Fulton County, Ga.), Jan. 4, 2008 ("It's not that Georgiadoesn't have the money. It pays private attorneys rates between$125 and $225 for legal work that is not constitutionally required,more than the $95-per-hour rate paid for appointed lawyers incapital cases. And of course it spends millions of dollars on otherthings that are not constitutionally required.").
  30. See JUSTICE DENIED, supra, at 198-99 (Recommendation10).
  31. See, e.g., MINOR CRIMES, supra, at 27-28.
  32. See JUSTICE DENIED, supra, at 210-13 (Recommendations19-22).
  33. See id. at 200-02 (Recommendations 12 and 13).
  34. Id. at 200.
  35. See, e.g., GIDEON'S BROKEN PROMISE, supra, at41-42.
  36. See, e.g., Norman Lefstein, In Search of Gideon'sPromise: Lessons from England and the Need for Federal Help,55 HASTINGS L.J. 835, 843 (2004).
  37. JUSTICE DENIED, supra, at 5, 29-30.
  38. See, e.g., U.S. CONST. art. VI, § 2.
  39. See, e.g., David A. Sklansky, Quasi-AffirmativeRights in Constitutional Criminal Procedure, 88 VA. L. REV.1229, 1233-38 (2002).
  40. As James Madison famously wrote in The Federalist No.45, the powers delegated to the federal government would be"few and defined,"
exercised principally on external objects, as war,peace, negotiation, and foreign commerce; with which last the powerof taxation will, for the most part, be connected. The powersreserved to the several States will extend to all the objectswhich, in the ordinary course of affairs, concern the lives,liberties, and properties of the people, and the internal order,improvement, and prosperity of the State.

THE FEDERALIST No. 45, at 292-93 (James Madison) (Clinton Rossitered., 1961). Federalism was enshrined in the U.S. Constitution byspecifically enumerating the powers of the federal government, seeU.S. CONST. art. 1, §8; and declaring that all other powerswere "reserved to the States respectively, or to the people." U.S.CONST. amend X.

  • See, e.g., Brown v. Maryland, 25 U.S. 419,443 (1827); United States v. Lopez, 514 U.S. 549, 566(1995).
  • THE FEDERALIST No. 17, at 120 (Alexander Hamilton) (ClintonRossiter ed., 1961). The Constitution mentioned only a handful ofcrimes in its text, all of which were consistent with the designand limits of federalism. See U.S. CONST. art. 1, §8, cl. 6(counterfeiting); U.S. Const. art. 1, §8, cl. 10 (piracy,felonies on the high seas, offenses against the law of nations);U.S. CONST. art. 3, §3 (treason). In fact, it was unthinkableto the Framers that the federal government would adopt a full-scalepenal code, let alone displace or otherwise interfere with thestate criminal justice systems. See, e.g., RUSSELL CHAPIN, UNIFORMRULES OF CRIMINAL PROCEDURE FOR ALL COURTS 2 (1983). As ChiefJustice John Marshall would later opine, Congress "has no generalright to punish murder committed within any of the States," and "itis clear that Congress cannot punish felonies generally."Cohens v. Virginia, 18 U.S. 264, 426, 428 (1821).
  • Lopez, 514 U.S. at 561 n.3 (internal citationsomitted).
  • See, e.g., Michael W. McConnell, Federalism: Evaluating theFounders' Design, 54 U. CHI. L. REV. 1484 (1987). In apluralistic society like ours, citizens in different jurisdictionsare likely to have distinct views on the substance and process ofcriminal justice. State and local decision-makers are more likelyto be attuned to such preferences, given their closeness toconstituents and the greater opportunity of citizens to be involvedin state and local government, including the legal system.Unencumbered by national dictates, states may even becomelaboratories of experimentation in criminal justice. In theoftrepeated words of Justice Louis Brandeis, "It is one of thehappy incidents of the federal system that a single courageousstate may, if its citizens choose, serve as a laboratory; and trynovel social and economic experiments without risk to the rest ofthe country." New State Ice Co. v. Liebmann, 285 U.S. 262,311 (1932) (Brandeis, J., dissenting). Should individuals findunbearable the local or state approach to crime and punishment,federalism allows them to vote with their feet, so to speak, bymoving to another county or state.
  • Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). "Justas the separation and independence of the coordinate branches ofthe Federal Government serve to prevent the accumulation ofexcessive power in any one branch, a healthy balance of powerbetween the States and the Federal Government will reduce the riskof tyranny and abuse from either front." Id.
  • Id. See also Lopez, 514 U.S. at 553.
  • JUSTICE DENIED, supra, at 200-01.
  • Mistretta v. United States, 488 U.S. 361, 427 (1989)(Scalia, J., dissenting). Cf. Erik Luna, Gridland: AnAllegorical Critique of Federal Sentencing, 96 J. CRIM. L.& CRIMINOLOGY 25 (2005) (critiquing the U.S. SentencingCommission and U.S. Sentencing Guidelines).
  • Decade of Moral Hazard, WALL ST. J., Sept. 25,1998.
  • JUSTICE DENIED, supra, at 201 (Recommendation 13).
  • See, e.g., CATO HANDBOOK FOR POLICYMAKERS ch. 5 (7thed. 2009) ("fiscal federalism").
  • See, e.g., ACLU OF TEXAS, FLAWED ENFORCEMENT (May2004), available at; Laura Parker, Texas Scandal ThrowsDoubt on Anti-Drug Task Forces, USA TODAY, Mar. 30,2004.
  • JUSTICE DENIED, supra, at 104-46. See alsoid. at 210-13(Recommendations 19-22).
  • Id. at 136.
  • See Luckey v. Miller, 976 F.2d 673 (11th Cir.1992).
  • See JUSTICE DENIED, supra, at 116-17 (discussing Duncan v.State of Michigan and Hurrell-Harring v. NewYork).
  • See Younger v. Harris, 401 U.S. 37(1971).
  • John S. Baker, Jr., Revisiting the Explosive Growth ofFederal Crimes, HERITAGE FOUNDATION LEGAL MEMORANDUM No. 26,June 16, 2008, available at also ABA TASK FORCE ON FEDERALIZATION OF CRIMINAL LAW, THEFEDERALIZATION OF CRIMINAL LAW (1998).
  • See, e.g., Luna, Overcriminalization Phenomenon,supra.
  • See, e.g., Luna, Gridland, supra.
  • The National Criminal Justice Commission Act of 2009,S.714.
  • Erik Luna

    Subcommittee on Crime, Terrorism, and Homeland Security
    Committee on the Judiciary
    United States House of Representatives