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Harvard Law Review

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indigent defense, public defenders, defense funding, Strickland v. Washington


Law | Public Law and Legal Theory


This notice was posted in a Covington, Kentucky, courthouse in the late 1980s, in the hope that a lawyer might be found to defend the pending capital case of Gregory Wilson. In Covington, the statutory limit on funding for defense counsel in capital cases was $2500 and the local indigent defense program could not find a lawyer willing to defend the case for such a paltry sum. When the head of the indigent defense program asked the judge to order additional compensation to secure a defense lawyer, "the judge refused and suggested that the indigent defense program rent a river boat and sponsor a cruise down the Ohio river to raise money for the defense."

Many courts have been hesitant to acknowledge the ways in which the realities of indigent defense affect the assistance a defendant actually receives. Courts have deemed effective lawyers who were unaware of current governing law in the case at hand, lawyers who were intoxicated at the time of trial, and lawyers who were asleep. Perhaps the most pervasive problem affecting indigent defendants, however, is not that their lawyers are incompetent, but that those lawyers lack adequate resources to defend their clients. Today's public defenders are underfunded and overburdened. Their caseloads and workloads have risen to crushing levels in recent years, and caps on funding both for individual cases and for overall compensation levels have effectively rendered many lawyers ineffective. Due to the political unpopularity of criminal defendants and their lack of financial and political capital, state legislatures are unlikely to allocate significant attention or resources to the problem of indigent defense, leaving courts with the task of creating a constitutionally mandated remedy.



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