State Constitutional Challenges to Indigent Defense Systems

For many years, the primary vehicle that advocates used to protect the fundamental right of the accused to the effective assistance of counsel was the Sixth Amendment to the United States Constitution, as incorporated to the states by the Fourteenth Amendment. For some time, most obviously during the Warren Court years, this federal strategy proved fruitful; indeed, it resulted in a series of landmark decisions by the United States Supreme Court that impact indigent defense systems to this day. A subsequent sea change in the Court's jurisprudence, however, which placed great emphasis on federalism, particularly the doctrines of justiciability and abstention (or constitutional avoidance), made it increasingly difficult for litigants to secure basic constitutional protections. Justice William J. Brennan, Jr., who foresaw the turning tide, advised civil rights advocates to consider an alternative strategy: using state constitutional guarantees as the means to provide greater protections to citizens.

This Article picks up where Justice Brennan left off, identifying some of the barriers presented by the new federalism, specifically in the context of indigent defense systems, and outlining how some states have managed to successfully circumvent these barriers in order to secure constitutional protections for their citizens - protections more expansive than the basic guarantees in analogous provisions of the federal Bill of Rights.