Eve Brensike Primus (University of Michigan Law School) has posted Waiting for Justice: Unconstitutional Delays in the Appointment of Criminal Defense Counsel (forthcoming in Volume 125 of the Michigan Law Review) on SSRN. Here is the abstract:
The Constitution guarantees a right to counsel in criminal cases, but indigent criminal defendants are commonly left to languish in jail without legal representation for weeks, months, and even years before counsel is appointed to represent them. These delays are not isolated anomalies. They have become systemic features of indigent defense delivery in many states, and the judiciary has begun to intervene. Courts in Maine, Massachusetts, Missouri, and Oregon have recently declared these delays unconstitutional and are ordering defendants released, dismissing charges, and imposing structural remedies to address these systemic failures.
This Article examines and synthesizes this emerging body of case law. It identifies the structural causes driving appointment delays, explaining why jurisdictions that rely heavily on private attorneys for indigent defense are especially likely to have unconstitutional gaps in representation. Drawing on decades of judicial precedent, the Article articulates a framework for determining when the Constitution requires counsel’s presence, and it explains why counsel must be appointed at — or closely following — the initiation of adversarial judicial proceedings and must thereafter be in place continuously until the end of the critical early investigation period. Finally, the Article evaluates the remedial strategies courts are employing. It concludes that state-court litigation combining civil rights claims with common-law writs is uniquely positioned to provide immediate relief to unrepresented defendants while also catalyzing durable systemwide reforms, including a shift away from private assigned-counsel and contract models for indigent defense and toward greater reliance on institutional public defender offices.
Recommended.