Justice DenieD

Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel
the representation of the defendant should be analyzed under Strickland’s two-prong
test and that the representation was reasonably competent, and even if it was not,
there was no prejudice to the defendant notwithstanding deficiencies in the defense
system. Thus, as one author has noted, efforts to achieve systemic reform through
post-conviction litigation are unlikely to succeed. 120
C. Judiciary’s Authority to Provide Relief
While the actual remedies fashioned by state courts for systemic indigent defense
deficiencies necessarily depend on the facts of the specific case, whether any relief
is provided will turn on the authority of the courts to act. Among the states, courts
have provided relief under their inherent authority to protect the core functions of
the judiciary, their equity jurisdiction, and their powers of general superintendence.
Most significant to the outcome, however, is the court’s determination whether the
doctrine of separation of powers precludes the requested relief. The federal courts
have asserted jurisdiction in systemic reform cases based upon habeas corpus petitions
and in cases brought as civil rights actions under § 1983 121
Inherent Authority of State Courts
In most cases alleging the violation of indigent defendants’ right to counsel due to
systemic deficiencies, an infusion of funds to rectify the situation is required. Because
the appropriation of funds is normally a legislative task, an issue of separation of
powers arises when the judiciary is asked to order that additional funds be made
available. Nevertheless, when faced with severe underfunding of the defense function,
some courts have declared an inherent authority to compel the legislature to provide
adequate appropriations in order to ensure that the judicial branch remains viable. 122
As the Mississippi Supreme Court has explained:
120 See Bernhard, Take Courage, supra note 21. Post-conviction Cronic analysis is much like Strickland
analysis in that the defendant must show prejudice to his defense. The distinguishing feature is
where the burden lies. Under Cronic, if systemic deficiencies are found to deny the defendant the
right to counsel, ineffectiveness is presumed and the burden shifts to the state to rebut the presumption.
Cronic, 466 U.S. at 659. Under Strickland, the competence of the attorney is presumed
and the burden to demonstrate prejudice remains with the defendant. Strickland, 466 U.S. at 693.
121 For discussion of § 1983, see infra notes 152–69 and accompanying text.
122 An important function of the judiciary is to ensure that the Sixth Amendment right to counsel is
implemented and that there is a genuine confrontation between adversaries. See Cronic, 466 U.S. at
656–57.
130 | The Constitution Project