The NRCC Report also recommends that the federal government provide substantial financial support for indigent representation in state criminal justice systems,33 including the creation of “an independent, adequately funded National Center for Defense Services.“34 This reiterates a long‐standing proposal by the American Bar Association, as well as a congressional bill sponsored by Sen. Kennedy and Rep. Rodino in 1979–80.35 On its face, federal funding might appear to be a sound public policy to address the dilemma of indigent representation in various places around the nation. And given supporting institutions like the ABA and the gravitas of congressional and scholarly36 advocates of the past and present, I am reticent and duly cautious in any disagreement with their collective wisdom. Nonetheless, I will briefly discuss some of my concerns regarding the call for federal involvement in the state criminal defense function, which is premised, I believe, on the widely held and often erroneous assumption that a crisis in America necessarily requires congressional action.
To begin with, I have a seemingly small but nonetheless important difference of opinion about the predicate for federal funding. 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 local governments.“37 It is an ingenious argument — attempting to analogize constitutional decisions of the U.S. Supreme Court to requirements imposed on the states by Congress — but in the end, it proves too much. As typically understood, federal unfunded mandates are the product of the discretionary actions of Congress and various federal agencies, coming in the form of normal positive law (i.e., statutes or regulations). In contrast, the Supreme Court’s constitutional decisions are interpretations of the fundamental law of the land, the U.S. Constitution, which the states adopted at the framing and all state officers support by oath.38
The Court may have announced Gideon, but it is the Sixth Amendment that requires the states to provide for indigent representation. This is no more an “unfunded mandate” than, for instance, the Eight Amendment command that prisoners be provided food and other human necessities that draw upon state funds. Indeed, almost every constitutional guarantee in the criminal process, especially the full panoply of trial rights (e.g., speedy and public trials, compulsory process, impartial juries drawn from a fair cross‐section of the community, etc.), imposes affirmative costs on the relevant jurisdiction.39 Of course, it would be a nonstarter to claim that Congress thereby has an obligation to compensate the states for their criminal trials and prisons. Instead, the states assume these expenses by choosing to operate a justice system and forcing individuals through the criminal process.
Not only is federal funding of state indigent defense not required by the Constitution, it raises issues related to the constitutional principle of federalism. Grounded in the text and context of the nation’s charter, federalism limits the powers of national government and prevents federal interference with the core internal affairs of the individual states.40 Since the founding, the Supreme Court has declared on a number of occasions that the federal government does not have a general police power.41 Among the areas that the Framers sought to reserve to the states was “the ordinary administration of criminal and civil justice.“42 In more recent times, the Supreme Court has reiterated these limitations on federal involvement in local criminal justice matters, given that the “[s]tates possess primary authority for defining and enforcing the criminal law.” As such, constitutional concerns are raised whenever Congress effects “a significant change in the sensitive relation between federal and state criminal jurisdiction.“43
There are various arguments in favor of federalism in this area — such as pluralistic decision‐making and local experimentation44 — that may be impeded by federal interference with state criminal justice systems, which inevitably implicate norms and values that vary by jurisdiction. Most importantly, it may jeopardize “the principal benefit of the federalist system,“45 the protection of individual liberties. Federalism and its allied doctrine, the separation of powers, create multiple layers of government, all duty‐bound to the people rather than to each other. This provides a structural check on every level of government, preventing the concentration of power and the ensuing danger of tyranny.46
These are not idle musings. As I understand it, the proposed National Center for Defense Services will not just be a task force, fact‐finding committee, study commission, or center in the mold of academe. Rather, the Center will be a comprehensive, fully funded entity with the financial authority “to help the states defray the costs of defense services in criminal and juvenile cases,” “providing grants, sponsoring pilot projects, supporting training, conducting research, and collecting and analyzing data.“47 In other words, it will be a federal bureaucracy with the authority to make and enforce policy, and to dispense and control millions (if not billions) of dollars. Although the proposal is extremely well‐intentioned, caution is warranted in creating any federal body with such powers outside of the basic constitutional framework.
Government bureaucracies tend to be acquisitive and monopolistic, seeking to maximize their funding and expand their powers. They also create agency costs, serving the self‐interests of bureaucrats rather than their principals (i.e., American taxpayers). And in the end, bureaucracies have a tendency toward entrenchment and are almost impossible to eliminate or meaningfully reform 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 Services cannot be the exception. But relatively recent experience with federal criminal justice bureaucracy — namely, the U.S. Sentencing Commission qua “junior varsity Congress“48 — has been less than spectacular.
Federal funding in the present context also raises questions of incentive structures. There are circumstances where federal involvement might not only fail to improve a particular problem but may also exacerbate a larger structural infirmity. Congressional funding of indigent defense in a given jurisdiction serves as a sort of “bailout,” where one entity (the federal government) rescues another entity (a state) from its financial distress. The institutional beneficiaries, state lawmakers, are not viewed with the level of skepticism currently focused on corporate America. But as with other, more typical bailouts, congressional funding here raises the specter of moral hazard, the economic phenomenon that can be succinctly defined as “the distortions introduced by the prospect of not having to pay for your sins.“49
If a given state does not bear the full costs of its criminal justice decisions and instead is able to externalize a politically disagreeable expense on another entity — in this case, passing along the funding of state indigent defense to the federal government — state officials may have little incentive to temper their politically self‐serving decisions that extend the criminal justice system. In a worst‐case scenario, those states that have met the constitutional requirements may be tempted to skimp on their own budgeting for indigent representation with an eye toward receiving federal support. This is all the more troubling given that, as mentioned above, deadbeat jurisdictions could meet their constitutional obligations: They could fully finance indigent representation through increased taxes or the diversion of funds allocated for other items. Or they could reduce the number of defendants and thus the need for indigent representation by means of decriminalization, diversion, lower sentences, and tempered enforcement. Obstinate jurisdictions have chosen neither option, however, doubtlessly because such actions are viewed as bad politics.
Moreover, there is a real question of fairness if the federal government were to bail out states that have failed to hold up their constitutional responsibilities: Why should citizens in a state that meets its Sixth Amendment‐based financial obligations have to pay for a state that does not? Under most circumstances, it would be curious (if not perverse) for the federal government to provide funding to a state precisely because it violates the Constitution. Imagine, for instance, a county sheriff’s department that has the ability to provide jail inmates adequate food, clothing, shelter, and so on, but refuses to do so for political reasons. Or imagine a police department that systematically violates the Fourth Amendment rights of pedestrians and motorists. The appropriate response would not be to provide these entities federal funds to, respectively, maintain humane conditions of confinement and refrain from conducting illegal searches 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 its obligations to comply with other constitutional principles, such as the right to counsel. So let me reiterate: The states can and must ensure that criminal defendants receive the type of representation demanded by the Sixth Amendment. Moreover, I am not claiming that the courts would invalidate congressional funding on federalism grounds. As a doctrinal matter, Congress’s Article I spending powers are essentially unfettered. Instead, the constitutional design and underlying principles caution against the federal government becoming entangled in the internal affairs or assuming the core functions of the states. The values of pluralistic decision‐making and localism, as well as the danger of too much power in too few hands, are not trifling and should not be disregarded lightly.
In turn, the public policy considerations mentioned above are only broad and somewhat abstract, stated in the absence of a concrete budget proposal, not the inexorable results of federal funding for state indigent defense. Opposing arguments may point to hopelessly dysfunctional political processes at the state level, for instance, or various legislative techniques that might avoid perverse incentives for funding recipients. My mind remains open on this issue, and, of course, the devil of any legislation would be in its details. Nonetheless, Congress should consider the unintended consequences and inter‐jurisdictional equity of absorbing the costs owed by a given state, resulting from the political choices and neglect of its officials, when that state can and, in all good conscience, should pay the bill.
As described upfront, I am a staunch believer that impoverished defendants have the right to competent and appropriately compensated counsel. Although federal involvement in state indigent representation is problematic on a number of grounds, I will not lose sleep if Congress were to create and fund the National Center for Defense Services. The proposal may be flawed as a matter of constitutional principle and public policy, but at least it is based on good intentions and aimed at real constitutional violations. Before closing, however, I would like to briefly mention a few suggestions on what Congress can do without raising the aforementioned issues of constitutional law and public policy.