Representation of Indigent Defendants in Criminal Cases: A Constitutional Crisis in Michigan and Other States?


Chairman Scott, Ranking Member Gohmert, and Members of theCommittee and Subcommittee, thank you for the opportunity to speaktoday on the subject of the representation of indigent defendantsin criminal cases. My name is Erik Luna, and I am a law professorat Washington and Lee University School of Law and an adjunctscholar with the Cato Institute. 1 I specialize incriminal law, criminal procedure, and allied areas of law andpublic policy. In my allotted time, I will briefly discuss someconcerns about the possibility of federal involvement in thecriminal defense function in state criminal justice systems.

  1. The Condition Of Indigent DefenseRepresentation

To begin, however, it is important to express my agreement withmuch of the critical commentary in this area, including theopinions of my fellow panelists. There are American jurisdictionswhere the accused receives the facade of legal representation,which at best meets the letter of Gideon but certainly notits spirit2, and at worst fails to maintain even thepretense of constitutional compliance.

The report that inspired today's hearing paints a somber pictureof indigent defense in Michigan3. Some of the problemsare directly attributable to parsimonious decision-making,including inadequate attorney compensation and the lack ofresources for investigators, expert witnesses, and support staff.Other problems are derivative of deficient funding, such asexcessive caseloads for defense lawyers and the absence ofmeaningful training programs. Still other problems may have someloose causal connection to insufficient funding but are moreproperly ascribed to individual behavior and structural choices -grossly incompetent and unethical lawyering, for instance, or unduejudicial involvement and interference with the defensefunction.

Michigan is not alone, however, as chronicled in a series ofreports commissioned or written by the American Bar Association andits Standing Committee on Legal Aid and Indigent Defendants (ABAStanding Committee)4. The accounts are disconcerting tothose who care about criminal justice, describing in detail thestate failures to meet the basic principles of public defensedelivery systems enumerated by the ABA and analogous statebodies5. Although one might quibble with some of theassertions made by the authors, by and large the reports andprinciples are unobjectionable, as are most of the proposedsolutions to the problems of indigent defense.

  1. Report Recommendations

The ABA Standing Committee has recommended that stategovernments increase their funding for indigent representation andprovide resource parity between prosecutors and defenseattorneys6. Likewise, the Michigan report calls uponstate government to fulfill its financial responsibility forindigent representation rather than passing on the bill to theindividual counties7. Other recommendations are notexplicitly fiscal in nature, although their dictates may involvefunding of some sort: the creation of state organizations toprovide oversight of indigent defense, the obligation of defensecounsel to refuse excessive caseloads, the elimination of judicialinterference or even vindictiveness against defense counsel, andthe active involvement of state and local bar associations inevaluating, monitoring, and reforming indigent defensesystems8.

In general, the recommendations mirror the problems detailed inthe reports. They also place the onus to act upon the entities mostliable for the current status quo. For instance, state barassociations often are responsible for licensing attorneys andensuring their continued education and compliance with ethical andlegal standards. In such cases, bar associations must accept atleast part of the blame for system-wide failures of professionalresponsibility in indigent representation - and in the end, theymay be in the best position to remedy suchfailures9.

The most culpable entities, however, are the elected andappointed officials of the relevant states. They are the ones whofail to provide sufficient funds for indigent representation andenact the sometimes dubious criminal laws and punishments that fillstate penal codes. Likewise, state and local officials make thechoices that overload the system with arrests and prosecutions.These officials also have the power to provide the necessaryresources for defense counsel, to pare back their bloated penalcodes and reduce lengthy sentences, and to be more prudent in theenforcement of criminal laws on the streets and in courthouses.

Within constitutional constraints, state officials ought to beencouraged to meet their obligations, whether by increasing fundingof indigent representation or by reducing the number of criminalcases and thus the need for defense counsel. If they refuse to doso, these officials should be held to answer in the appropriatetribunal pursuant to a simple but essential ideal: A jurisdictionmay not deprive individuals of their liberty through a process thatdenies basic rights, including the Sixth Amendment right tocounsel.

Along these lines, today's hearing may serve a laudable agenda:investigating the problem of indigent representation in statecriminal justice, placing the spotlight on those states withdeficient systems and encouraging them to comply with theirconstitutional obligations, and even providing fodder for judicialdecision-making. I would like to raise some concerns, however, ifthe objectives of the hearing prove far broader. Specifically, theABA Standing Committee has recommended that the federal governmentprovide substantial financial support for indigent representationin state criminal justice systems, including the creation of whatlooks to be a rather large entity to administer thesefunds10.

  1. Sixth Amendment Bailout

On its face, federal funding might appear to be sound publicpolicy to address the dilemma of indigent representation in variousplaces around the nation. But it may be motivated by a widely heldand erroneous assumption, namely, that a crisis in Americanecessarily requires congressional action. Indeed, there arecircumstances where federal involvement might not only fail toimprove a particular problem but may also exacerbate a largerstructural infirmity. To help conceptualize the issue, let'sconsider congressional funding of indigent defense in a givenjurisdiction as a sort of bailout. This may be a loaded term in thecurrent state of affairs, but such action would meet the basicdefinition: one entity (the federal government) rescuing anotherentity (a state) from its financial distress.

The institutional beneficiaries of a Sixth Amendment bailout,state lawmakers, are not viewed with the jaundiced eye currentlyfocused on corporate America. Nonetheless, a bailout of thosestates that fail to meet their constitutional duties has adistinctly troubling aspect, given that they could meet theirobligations by: [1] fully financing indigent representation throughincreased taxes or the diversion of funds allocated for otheritems; or [2] reducing the number of defendants and thus the needfor indigent representation by means of decriminalization,diversion, lower sentences, and tempered enforcement. The stateshave chosen neither option, however, doubtlessly because suchactions are viewed as bad politics.

There is a real question of fairness if the federal governmentwere to bail out states that have failed to hold up theirconstitutional responsibilities: Why should citizens in a statethat meets its Sixth Amendment-based financial obligations have topay for a state that does not? Under most circumstances, it wouldbe curious (if not perverse) for the federal government to providefunding to a state precisely because it violates the Constitution.Imagine, for instance, a county sheriff's department that has theability to provide jail inmates adequate food, clothing, shelter,and so on, but refuses to do so for political reasons. Or imagine apolice department that systematically violates the FourthAmendments rights of pedestrians and motorists. The appropriateresponse would not be to provide these entities federal funds to,respectively, maintain humane conditions of confinement and refrainfrom conducting illegal searches and seizures. Instead, they shouldbe given an ultimatum: Meet the constitutional requirements orface, among other things, civil rights litigation.

In its title, the Michigan report uses the phrase "race to thebottom," presumably in reference to the tendency of counties to usethe least expensive and most efficient means of providing indigentrepresentation. However, a different set of incentives might arisefrom congressional funding of state indigent representation. If agiven state does not bear the full costs of its criminal justicedecisions 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.

To be sure, these are only broad and somewhat abstract publicpolicy considerations, stated in the absence of a concrete budgetproposal, not the inexorable results of federal funding for stateindigent defense. Opposing arguments may point to hopelesslydysfunctional political processes at the state level, for instance,or various legislative techniques that might avoid perverseincentives for funding recipients. My mind remains open on thisissue, and, of course, the devil of any legislation would be in itsdetails. Nonetheless, Congress should consider the unintendedconsequences and inter-jurisdictional equity of absorbing the costsowed by a given state, resulting from the political choices andneglect of its officials, when that state can and, in all goodconscience, should pay the bill.

  1. Federalism

Another concern involves the constitutional principle offederalism. Grounded in the text and context of the nation'scharter, federalism limits the powers of national government andprevents federal interference with the core internal affairs of theindividual states. As James Madison famously wrote in TheFederalist No. 45, the powers delegated to the federalgovernment 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 theState.11

Federalism was enshrined in the U.S. Constitution byspecifically enumerating the powers of the federalgovernment12 and declaring that all other powers were"reserved to the States respectively, or to thepeople13." Since the founding, the Supreme Court hasstated on a number of occasions that the federal government doesnot have a general police power14.

Among the areas that the Framers sought to reserve to the stateswas "the ordinary administration of criminal and civiljustice."15 The Constitution mentioned only a handful ofcrimes in its text, all of which were consistent with the designand limits of federalism16. 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 systems17. As Chief Justice JohnMarshall would later opine, Congress "has no general right topunish murder committed within any of the State," and "it is clearthat Congress cannot punish felonies generally18." Inmore recent times, the Supreme Court has reiterated theselimitations on federal involvement in local criminal justicematters, given that the "[s]tates possess primary authority fordefining and enforcing the criminal law." As such, constitutionalconcerns are raised whenever Congress effects "a significant changein the sensitive relation between federal and state criminaljurisdiction19."

There are numerous arguments in favor of federalism in thisarea. In a pluralistic society like ours, citizens in differentjurisdictions are likely to have distinct views on the substanceand process of criminal justice. State and local decision-makersare more likely to be attuned to such preferences, given theircloseness to constituents and the greater opportunity of citizensto be involved in state and local government, including the legalsystem. Unencumbered by national dictates, states may even becomelaboratories of experimentation in criminal justice. In theoft-repeated 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 country20." Should individuals find unbearable thelocal or state approach to crime and punishment, federalism allowsthem to vote with their feet, so to speak, by moving to anothercounty or state.

These benefits may be impeded by federal interference with statecriminal justice systems, which inevitably implicate norms andvalues that vary by jurisdiction. Most importantly, it mayjeopardize "the principal benefit of the federalistsystem21," the protection of individual liberties.Federalism and its allied doctrine, the separation of powers,create multiple layers of government, all duty-bound to the peoplerather than to each other. This provides a structural check onevery level of government, preventing the concentration of powerand the ensuing danger of oppression. "Just as the separation andindependence of the coordinate branches of the Federal Governmentserve to prevent the accumulation of excessive power in any onebranch, a healthy balance of power between the States and theFederal Government will reduce the risk of tyranny and abuse fromeither front22."

All of this may be cold comfort for indigent defendants andtheir counsel in financially delinquent states. But to be clear,federalism in no way relieves a jurisdiction of its obligations tocomply with other constitutional principles, such as the right tocounsel. So let me reiterate: The states can and must ensure thatcriminal defendants receive the type of representation demanded bythe Sixth Amendment. What federalism restricts is the involvementof Congress in the internal affairs of the states, allowing eachjurisdiction to make independent decisions that comport withcitizen preferences, including those with regard to crime andpunishment. Above all, it checks tyranny by preventing theaccumulation of too much power in too few hands, a problem that maynot seem relevant here but all too often manifests itself incriminal justice systems.

  1. Concluding Thought

I would like to conclude today with a recommendation of my own:The federal government should drastically downscale its criminaljustice portfolio, including the funding it provides state andlocal law enforcement. Federalism is not a law-and-order,anti-defendant political gimmick. It is a fundamental principle,grounded in the Constitution, that restricts federal involvement instate affairs, whether Congress wants to incentivize and evencommand local police and prosecutors to pursue particular crimes orinstead seeks to fund indigent representation in state courts.

In turn, I would encourage Congress to reexamine the federalcriminal justice system. According to a recent estimate, there areat least 4,450 federal crimes in the U.S. Code23, anumber that would be outrageous in a jurisdiction with a generalpolice power. Particularly troubling are those crimes thatduplicate state laws or dispense with traditional constraints onculpability, such as a mens rea requirement24. Moreover,the federal sentencing is in dire need of a make-over to replacethe virtually incomprehensible U.S. Sentencing Guidelines scheme aswell as the inflexible and often draconian mandatory minimumsentences25.

By reforming the federal criminal justice system, Congress wouldbe providing a valuable and perfectly constitutional service to thestates - the federal government as role model, not dictator orunderwriter.

Again, thank you for the opportunity to speak today, and 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).
  6. GIDEON'S BROKEN PROMISE, supra, at 41.
  7. See RACE TO THE BOTTOM, supra, at 1-13.
  8. See GIDEON'S BROKEN PROMISE, supra, at 42-45.
  9. Admittedly, law schools bear some blame and should also becalled upon to provide solutions.
  10. GIDEON'S BROKEN PROMISE, supra, at 41-42.
  11. THE FEDERALIST No. 45, at 292-93 (James Madison)(Clinton Rossiter ed., 1961).
  12. See U.S. CONST. art. 1, §8.
  13. U.S. CONST. amend X.
  14. See, e.g., Brown v. Maryland, 25 U.S. 419, 443 (1827);United States v. Lopez, 514 U.S. 549, 566 (1995).
  15. THE FEDERALIST No. 17, at 120 (Alexander Hamilton) (ClintonRossiter ed., 1961).
  16. 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).
  18. Cohens v. Virginia, 18 U.S. 264, 426, 428 (1821).
  19. Lopez, 514 U.S. at 561 n.3 (internal citationsomitted).
  20. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)(Brandeis, J., dissenting).
  21. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
  22. Id. See also Lopez, 514 U.S. at 553.
  23. John S. Baker, Jr., Revisiting the Explosive Growth ofFederal Crimes, HERITAGE FOUNDATION LEGAL MEMORANDUM No. 26,June 16, 2008, available at Seealso ABA TASK FORCE ON FEDERALIZATION OF CRIMINAL LAW, THEFEDERALIZATION OF CRIMINAL LAW (1998).
  24. See, e.g., Erik Luna, The OvercriminalizationPhenomenon, 54 AMERICAN UNIVERSITY LAW REVIEW 704 (2005).
  25. See, e.g., Erik Luna, Gridland: An Allegorical Critique ofFederal Sentencing, 96 JOURNAL OF CRIMINAL LAW &CRIMINOLOGY 25 (2005).

Erik Luna

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