Rationing Criminal Defense Entitlements: An Argument from Institutional Design

Abstract

This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated—that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel’s “democratic experimentalism,” a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors—defense attorneys—have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to * Associate Professor and Alumni Faculty Fellow, Washington and Lee University School of Law.