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Tuesday, August 16, 2005

A Constitutional Floor for Indigence?

Judging by my mailbox at school, I guess it is now typical in the law porn business for schools to distribute glossy brochures to every law professor in the country that extol the unparalleled virtues of the sender's school and each hiccup and burp it emits.  I don't much mind it, at least given what the first week's mail has brought in.  But what I do enjoy far more, again, at least so far, is receiving reprints from scholars around the country who write in my field, or in areas relatively close to it.

Yesterday I received Adam Gershowitz's reprint entitled the Invisible Pillar of Gideon, which just came out in Indiana Law Journal (Summer 2005), and which I read this morning.  Gershowitz is a rookie prawf at South Texas who had written a very good note as a student entitled The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev. 1249 (2000). Indeed, I think Stanford's Pam Karlan expanded upon the idea Adam wrote about in a lecture she gave at Minnesota and published in its law journal.

Adam's newest piece illustrates the discrepancy among states in determining who is indigent for purposes of Gideon's assurance of a right to counsel.  He observes that what counts as indigent in one state (e.g., Scott Peterson in CA) would not count as indigent in another (Larry McVay in South Carolina).  I would add that, in light of the various states that have fuzzy guideposts for determining indigency, the discrepancy exists not only across states but within states too regarding who is entitled to appointed counsel. 

As to the solution to this problem, Adam (whom I've not yet met) doubts Congress and the states could do something to establish the constitutional floor that Gideon is supposed to furnish on an equal basis; he therefore proposes that the Supreme Court adopt a framework that would "equalize the right to apponted counsel across the fifty states."  Specifically, the Court should adopt a rebuttable presumption that says: if you're below 200% of the federal poverty guidelines, you should get appointed counsel.  This use of flexible benchmarks is similar to the Court's State Farm jurisprudence in punitive damages.

One of the reasons Adam's piece picqued my interest is because I have to teach this Gideon stuff next week.  But another is because it seems to me to be another dimension of the issue of implementing "equal justice under law" as a constitutional imperative, an issue I've been tackling in the sentencing context in my working paper entitled: Luck or Law? The Fate of Equal Justice After Booker.  That paper essentially argues that indeterminate sentencing schemes should be declared unconstitutional on account of their violating the anti-arbitrary norms that inhere in the Constitution and that have developed in the Court's jurisprudence.   Some feedback on that paper so far has focused on the bigger question of what the scope and proper limits are to the application of the "equal justice under law" principle in the criminal justice context.  Adam's paper helpfully, though indirectly, shows how to start thinking about that issue in other important places in the criminal justice arena.  The paper has the added virtues of being relatively short, straightforward and has some interesting coverage beyond the argument I've canvassed above.  I didn't see a draft up on SSRN, but it is up on Westlaw: the citation is 80 Ind. L.J. 571.

Posted by Administrators on August 16, 2005 at 04:39 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink


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» Revisiting indigence from a Public Defender
A post at Prawfsblawg highlights an article in the Indiana Law Journal titled "The Invisible Pillar of Gideon", arguing that there should be a Constitutional floor for Indigency.A few months ago, there was plenty of discussion on this matter of indig... [Read More]

Tracked on Aug 17, 2005 10:21:01 AM


I guess judges too. But that might be tricky...

Posted by: Dan Markel | Aug 18, 2005 2:43:50 PM

Nope, wouldn't object if federal guidelines were adjusted by metro area. For that matter, US Postal Service salaries should be too, and federal worker salaries should be adjusted more than they are.

Posted by: David Bernstein | Aug 17, 2005 11:21:29 PM

On the question of indigence, for which it should be pointed out affects both civil and criminal cases, I would like to talk about the latest trends in the State of Florida. Indigence, first of all, would have to include the concept of insolvency, i.e, in the bankruptcy sense that liabilities exceed assets (and perhaps income as well); otherwise, a person could be left in circumstances unable to pay for even basic necessities. Built into the concept of bankruptcy insolvency, however, is another concept, exempt property and/or income necessary for a "fresh start," i.e, what is necessary for a person or family to survive, turn around their lives, and not end up at public expense. Certain types of proceedings, moreover, require fee waivers, such as Boddie v. Connecticut established (family law proceedings). Another layer has been added to this equation, probably more applicable to civil cases than criminal, and that is the Federal anti-discrimination requirement applicable to the States under Title II of the Americans With Disabilities Act to leave a financial reserve for qualified individuals with disabilities large enough to maintain their independent living and economic self-sufficiency. This amount might include financial reserves to pay for safe housing, private transportation, medical care and therapy, wheelchairs, mobility, or assistive technology devices, caretakers. The ADA is, in part, a financial equality law, and Exclusions to the Unfunded Mandates Reform Act of 1995 operate to required the States to fund the ADA requirements. Obviously these financial concepts and requirements have been lost on many States, most certainly the State of Florida. In the most Recent Florida Bar News, The Florida Bar has proposed a new indigency form that only asks what a person's gross income from all sources is, but contains no information gathering about a person's expenses or debts/liabilities. Evidently, the idea is to add up all gross income sources and then levy Court fees upon the total, when perhaps the person has, say, business expenses that reduce the gross income sources to a samll net amount, or say, the gross income is completely take up in disability needs as stated above or, say, a total of $400,000 in student loan debt and child support arrearages. Thus, the State of Florida is now attempting to fund its Court system by deliberately undercutting the part of the ADA's unfunded federal mandate Florida is required to pay for, elevate Court fees as a sort of tax with priority over child support collections and federal student loan repayment, and the effect will be to put disabled people on the streets homeless, without food, or necessary medical care in droves. A violation of Title II of the ADA that could cost the State billions more than whatever it thinks it might save if a good class action law firm were to get ahold of this cause (attorneys fees are available under Title II of the ADA). Shortsighted, to say the least, but a typical balance-the-budget beureaucratic response that will cost more in the long run in exchage for cheap corner cutting in the short run. And, it should be noted Florida is a State that is spending millions in corporate welfare to attract corporations like Scripps to locate in the State, that take the money and break their promises to locate here. A truly broken system, and I applaud the efforts to raise and discuss this important topic, as it is truly one that makes or breaks the fundamental constitutional right to Access to the Courts.

Posted by: Mary Katherine Day-Petrano | Aug 17, 2005 2:22:00 PM

What is the constitutional basis for the court's proposition that excessive punitive damages violate the U.S. constitution?

I don't have much to offer on the point at hand, but when you offer a substantive due process line of caselaw as being "similar", it immediately makes me suspicious that whatever follows is presumed invalid until determined otherwise.

Posted by: Simon | Aug 17, 2005 12:26:45 AM

David, I think you make a strong point, which calls for two replies: first, as I suggested in my post yesterday on speeding towards t-town, my sense is that the main differences in cost of living in America are largely what you pay for real estate, and perhaps for academic elitists, whether one can tolerate or celebrate the use of public schools in a particular region for one's children. Otherwise, the price of milk and mercedes and dvd players is increasingly the same across the country (or so it seems to me so far). The more pressing point is that use of the federal poverty guidelines should be adjusted for the cost of living differences in various cities and/or states. I imagine that there are federal agencies (or other institutions) that make (or could make) such adjustments. Would you object then?

Posted by: Dan Markel | Aug 16, 2005 11:30:05 PM

Given the disparity in cost of living (and cost of attorneys) among the states, it strikes me as making little sense to use a national standard for indigency.

Posted by: David Bernstein | Aug 16, 2005 10:52:21 PM

As to no.2, I guess the protocol is to blog about it!

Posted by: Dan Markel | Aug 16, 2005 7:13:24 PM

1. We're delighted to have Adam as a colleague at South Texas as he begins his academic career.

2. What is the protocol upon receiving a reprint. Does (should) the recipient at least acknowledge receipt and express thanks for being included on the distribution list?

Posted by: tim zinnecker | Aug 16, 2005 6:24:56 PM

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