Rethinking Polk County v. Dodson: Giving Indigent Defendants a Fighting Chance

Abstract

As indigent defense programs are facing budget shortfalls all over the county, especially here in North Carolina one cannot help but criticize the United States Supreme Court decision in Polk County v. Dodson that shields public defenders are from Section 1983 liability because public defenders and appointed counsel do not meet the threshold requirement of actors. That is they cannot be sued for any of their traditional functions by their indigent clients. This is astounding because there is nothing to keep a public defender in check, other than his or her ethical obligations. And as the author has learned ethics are like money, no one cares about either until you don't have any. The United States Supreme Court seems to be protecting public defenders and appointed counsel while slapping indigent defendants around. This Comment proposes two alternatives that would give indigent defendants a fighting chance: (1) declare all actions taken by a public defender as 'under color of state law' or (2) award public defenders qualified immunity (an alternative that is supported in several circuit court of appeals but not yet adopted by SCOTUS.