The Absence of Agency in Indigent Defense

Despite the fact that courts routinely hold indigent criminal defendants responsible for the acts and omissions of their lawyers under a theory of agency, there is effectively no agency in that lawyer-client relationship. Agency requires that the principal retain the right to control, but a series of Supreme Court rulings issued in the wake of Gideon v. Wainwright, 372 U.S. 335 (1963), established that the representation that indigent defendants receive comes at the cost of losing control over most aspects of their defense. This loss puts indigent defendants in a fundamentally different position than defendants who can retain their own counsel, and it is the primary reason why the overall quality of indigent defense is so poor. There is little incentive for appointed lawyers to expend effort or resources on particular cases beyond the minimum required to avoid court or employer sanction. Furthermore, the ability of lawyers to microallocate services by refusing clients’ reasonable, defense-related requests allows legislatures to starve resources at the systemic level. Ironically, it is the view of lawyers as removed and autonomous professionals who require protection from their clients’ interference that has allowed chronic underfunding and unmanageable caseloads to persist in indigent defense. A reexamination of the rules on decisionmaking control and the incentives governing the indigent defendant-lawyer relationship is in order if we are to avoid another fifty years of systemic failure.