Jim Pickerell Stock Connection Worldwide/Newscom

Jim Pickerell Stock Connection Worldwide/Newscom

How should courts respond when the legislature does not adequately fund operation of the criminal justice system and thereby denies a defendant his constitutional rights? The Supreme Court avoided answering that question Monday, but the Court cannot avoid it forever.

Fifty years ago the Supreme Court held in Gideon v. Wainwright that an indigent defendant charged with a felony in state court was entitled to appointment of counsel before he could be prosecuted. Gideon required states to provide indigents with defense counsel but let the states decide how to satisfy that obligation. In response, some states created public defender services, while others pay private, court-appointed lawyers.

The defense bar has vociferously criticized states for inadequately funding defense representation. Public defenders have back-breaking caseloads, they argue, and court-appointed counsel are paid miserly rates of compensation. The result, they submit, is that Gideon guarantees indigents defendants a lawyer in name only.

Courts have the burden of deciding whether states have complied with Gideon because courts cannot enter a judgment of conviction in any case where a defendant was denied that right. Yet courts are reluctant to impose specific funding requirements on states because deciding what to spend on criminal justice versus other state functions (e.g., education) is a quintessentially legislative decision.

Moreover, it is easier for courts to dismiss charges than to appropriate funds, in part because courts are better at enforcing “Thou shall not” orders than “Thou shall” rules. Finally, 95 percent of all defendants plead guilty, which has the practical effect of avoiding litigation over funding issues.

There is, however, a way for this issue to arise. Last fall, the Supreme Court of the United States granted review in Boyer v. Louisiana to decide whether the state’s five-year failure to provide funds for a lawyer assigned to represent an indigent defendant violated his right to a speedy trial, requiring dismissal of the charges.

Monday, however, the Supreme Court issued an order dismissing Boyer as improvidently granted. The order does not explain why, but it is possible that the case did not provide a good opportunity to resolve the issue. In a concurring opinion, Justices Alito, Scalia, and Thomas implied that this was the reason for dismissing the case. Four justices, however, dissented. Justice Sotomayor (joined by Justices Ginsburg, Breyer, and Kagan) would have resolved the issue in the defendant’s favor. The government as a whole has the responsibility to protect a defendant’s constitutional rights, she concluded, and the legislature cannot frustrate that guarantee by refusing to fund indigent defense services.

Cases such as Boyer potentially give the courts a way out of the Gideon conundrum by allowing them to halt a prosecution if the defendant has not been brought to trial in a timely manner. The Supreme Court did not resolve that issue in Boyer, but the issue will certainly return, and the Court will eventually be forced to resolve it.