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.