Resource Parity for Defense Counsel and the Struggle Between Public Choice and Public Ideals

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court\u27s reasoning, but something far more fundamental: money. I ask whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources. For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this must come from the legislature, so the article reviews the prospects for resource parity in the state legislatures. The odds that legislators will vote for such a law are surprisingly good, given the willingness of Tennessee and other jurisdictions to experiment with the idea. The approach in this article is multi-disciplinary, using a bit of history, some traditional lawyerly case reading, some journalistic case studies, and a close review of public choice theory. In fact, the article explores more generally the applicability of public choice theory to crime legislation, and classifies criminal justice laws based on their different implications for this theory

Prosecutors and their State and Local Polities

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts. Duties to statewide voters derive from the fact that state legislatures create the criminal codes that prosecutors enforce. State government also funds some of the work of local prosecutors, but that funding is not sufficient to allow full enforcement of the criminal law. The state-level polity, therefore, empowers the local prosecutor to allocate scarce resources and to decline charges—even for entire categories of cases—as a means of promoting public safety that matches local conditions. Local prosecutors can meet their obligations to the statewide polity by framing their policies as rebuttable presumptions against filing charges and by justifying those policies as a reallocation of limited resources. Duties to the local polity can add further legitimacy to a prosecutor’s declination policy. Local views about the relative importance of crime should matter, particularly in circumstances where local governments fund aspects of court operations, the effects of crime and law enforcement are concentrated locally, and state law grants autonomy to the local prosecutor

Book Review: The Constitution and Criminal Procedure: First Principles. by Akhil Reed Amar.

Book review: The Constitution and Criminal Procedure: First Principles. By Akhil Reed Amar. New Haven, CT: Yale University Press. 1997. Pp. xi, 272. Reviewed by: Ronald F. Wright