The United States is a law-bound society that depends on adjudication to address many important questions. We thrust the poorest members of our society into the legal system to decide some of their most basic rights – can they continue to live where they’ve been living, can they keep receiving disability benefits or are they now able to work, how much will be taken from their meager paycheck to support a child or repay the payday loan they had to get to pay rent? Because of their economic status, they cannot pay for lawyers to help them through that process. As stated in the Rules of Professional Conduct, lawyers should volunteer their time to help in these cases, but pro bono alone will not fill the gap . . .
In Gideon v. Wainwright, the Supreme Court held that all criminal defendants facing serious criminal charges are entitled to the assistance of counsel, regardless of whether they can afford an attorney. In the years since Gideon, however, the provision of public defense to those who cannot afford counsel has fallen far short of the ideal expressed in Gideon that “every defendant stands equal before the law.” The failure of public defense systems to provide adequate representation to indigent defendants is often caused by severe underfunding and has resulted in the chronic appointment of “incompetent or inexperienced” counsel; delays in the appointment of counsel and discontinuity of attorney representation; a lack of training and oversight for counsel representing indigent defendants; excessive public defender caseloads and understaffing of public defender offices; inadequate or nonexistent expert and investigative resources for defense counsel; and a lack of meaningful attorney-client contact.
One response to these failings—as is often the case when constitutional violations are afoot—has been to challenge them in court. The focus of this short Article is on how the courts can address and have addressed the failings of underfunded and structurally flawed indigent defense systems. More specifically, it explores lawsuits that identify systemic failures—such as underfunding, excessive caseloads, and inadequate training and oversight—and seeks system-wide remedies capable of transforming the provision of defense services.
by Burnell K. Grimes, Jr.
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
B.A., 2013, Indiana University – Bloomington; Bloomington, Indiana
Editor’s note: Mr. Grimes’s article was selected as the winner of the Indiana Law Review‘s first writing competition. You can read more about it here.
The Indiana State Legislature has established a statutory rule allowing a court to appoint an attorney to represent an indigent person in civil matters, upon application by the litigant. . In Sholes v. Sholes, the Indiana Supreme Court held that (1) Indiana Code section 34-10-1-2 requires appointment of counsel for civil indigent litigants, and (2) the appointed counsel must be compensated. . However, the Court did not specifically decide who would be responsible for compensating those attorneys who are appointed as counsel to indigent citizens. . While the Court suggests that the county courts use their authority to require payment as part of the functions of the court’s administrative duties, this has placed a significant burden on courts that are already constrained by tight county budgets. .
While there are many possible solutions to the funding problem associated with civil legal aid in Indiana, there is a need to establish one funding source responsible for all civil legal aid matters. . This article will discuss one possible solution to the funding problem for civil legal aid in Indiana, with a specific focus on the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission. These funds may be used to address the funding and participation shortage for both civil indigent litigants and pro bono efforts and legal aid projects in Indiana.