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's 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.


Criminal Law | Criminal Procedure | Law and Society | Legislation

Date of this Version

September 2003