Funding Gideon\u27s Promise by Viewing Excessive Caseloads as Unethical Conflicts of Interest

Some states recently have attempted to legislate around a defendant\u27s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Step two-the step that has slipped by without sufficient notice or criticism-is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants\u27 Sixth Amendment rights to effective assistance. In this article, I urge courts to constitutionalize the excessive caseload problem via two steps of their own. First, courts explicitly should recognize that excessive caseloads create unethical conflicts of interest for the public defenders laboring under them. Second, courts should equate excessive caseload conflicts with joint representation conflicts. Once viewed as that type of conflict, excessive caseloads then would be evaluated under Sullivan\u27s adverse effect test instead of under Strickland\u27s more stringent actual prejudice test. Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own-finally provide adequate funding for indigent representation consistent with Gideon\u27s promise