“Look Forward, Not Back: A Perspective on Defense Lawyering in the United States”

The title of this post is the title of this book chapter authored by Charles Weisselberg and recently posted to SSRN. Here is its abstract:

The United States has 52 criminal legal systems, not just one.  Each of the states has its own, in addition to the federal government and the District of Columbia.  Despite sharing the same basic structure, there are significant differences in practices, procedures, and funding between these systems, and even within them.  Given this variance, it is tempting to look to constitutional principles — which apply nationwide — to address poor lawyering.  The Sixth Amendment to the U.S. Constitution provides the right to counsel, which includes the right to effective assistance of counsel.  But as the chapter explains, the Constitution sets such a low bar for lawyering as to be largely irrelevant.  Our test for ineffective assistance, which looks backward and examines counsel’s performance in an individual completed case, has failed to instill professional standards and lift up the quality of defense practice.

If lawyering is to improve in the US, we must look forward, not back.  With the lack of a meaningful Constitutional standard, we need to create structures that incentivize quality lawyering, especially for indigent criminal defendants.  The chapter describes several models of service delivery, including public defender offices, contracts for services, and appointments in individual cases.  As it turns out, public defender offices generally provide better outcomes for their clients, and can also raise the level of practice within a jurisdiction, including among private lawyers. The chapter concludes that the US should move toward this model through legislative and administrative advocacy, jurisdiction-by-jurisdiction.