Resource: The Third Generation of Indigent Defense Litigation

By: Cara Drinan

January 1, 2009

New York University Review of Law and Social Change

For years, scholars have documented the national crisis in indigent defense and its many tragic implications, and yet the crisis persists. Traditionally, the appellate and political processes were the exclusive avenues for indigent defense reform, and each suffered from critical infirmities. By the 1970's, individuals and groups began to seek prospective judicial reform of indigent defense systems. Widely used in other arenas, systemic suits based on the Sixth Amendment have been few in number and, at least in their early form, relatively unsuccessful. Other scholars have provided a descriptive account of structural litigation to improve indigent defense, and this article takes those accounts one step further by distilling from the recent body of suits a model for indigent defense litigation. In particular, this article divides suits of this kind into "first" and "second generation" suits - distinctions that are largely chronological, but phenomenological to an extent, as well. First generation suits were reactive and sought limited relief from the courts. In contrast, second generation suits have been marked by their empirical grounding, extensive alliances of support, and requests for sweeping reform. These second-generation suits have been far more successful than their predecessor suits, and this article contends that these suits are emblematic of a model that future suits can replicate. Finally, this article discusses specific issues for litigants of third generation suits to consider, in particular the pursuit of a federal forum. At the same time, the article recognizes that this type of litigation is neither a panacea nor uniformly available, and the article concludes by offering advice for the individual defense attorney who is working in the midst of a public defense crisis.