Protecting due process in a punitive era: an analysis of changes in providing counsel to the poor

Abstract

Most criminal justice scholars agree that the past three decades have witnessed a punitive shift in criminal justice policy, public opinion, and political rhetoric. Have these political trends also left their mark on policy approaches to due process rights? The provision of counsel to indigent defendants is a signature issue in debates over due process rights. The Supreme Court expanded dramatically the circumstances under which states were required to provide counsel in the 1960s and 1970s, though decisions about the implementation of this mandate were left to individual states. We examine the evolution of indigent defense policy, at the state and local level, over the past three decades, and ask two questions: First, did policies evolve in the directions expected by reform advocates? Second, to the extent that policies developed differently across states, how can we account for those differences? We find that refomers' optimistic projections about structure and funding have not been realized, and that adoption of progressive policies has been uneven across states. Most importantly, we find evidence that the politics of ideology and racial conflict have played a significant role in states' indigent defense policy over the past three decades.