This piece was originally published by the Missouri Law Review, 75 Mo. L. Rev. 751 (2010). This excerpt is reprinted with permission and the entire article can be read HERE

For many years, the primary vehicle that advocates used to protect the fundamental right of the accused to the effective assistance of counsel was the Sixth Amendment to the United States Constitution, as incorporated to the states by the Fourteenth Amendment. For some time, most obviously during the Warren Court years, this federal strategy proved fruitful; indeed, it resulted in a series of landmark decisions by the United States Supreme Court that impact indigent defense systems to this day. A subsequent sea change in the Court’s jurisprudence, however, which placed great emphasis on federalism, particularly the doctrines of justiciability and abstention (or constitutional avoidance), made it increasingly difficult for litigants to secure basic constitutional protections.
Justice William J. Brennan, Jr., who foresaw the turning tide, advised civil rights advocates to consider an alternative strategy: using state constitutional guarantees as the means to provide greater protections to citizens. This Article picks up where Justice Brennan left off, identifying some of the barriers presented by the new federalism, specifically in the context of indigent defense systems, and outlining how some states have managed to successfully circumvent these barriers in order to secure constitutional protections for their citizens – protections more expansive than the basic guarantees in analogous provisions of the federal Bill of Rights.

The author’s work in indigent defense litigation in Florida, Massachusetts, and Missouri suggests the following conclusions.105 Justice Brennan was on to something. State courts provide a rich opportunity for this kind of constitutional litigation. Indeed, state courts are ideally suited to address this issue, because it is the state judiciary that must confront, day to day, the seemingly intractable problems posed by grossly underfunded indigent defense systems. By contrast, the federal public defender offices are almost uniformly better funded than their state counterparts.
Moreover, nearly half of the states have constitutional provisions which either provide their supreme courts with original jurisdiction to “superintend” the justice system or permit the issuance of all writs necessary to the complete exercise of their jurisdiction.106 Often, these actions can be filed directly in the state supreme court with a request for the appointment of a special master or commissioner to do fact finding. That happened in both Florida107 and Massachusetts.108
Though there is no state constitutional power of general superintendence in Florida,109 its supreme court has developed a robust doctrine of inherent judicial power in its place. Moreover, the constitutional grant of all writs jurisdiction to the Florida Supreme Court, along with that court’s powerful authority regarding the primacy of state constitutional provisions regarding |STAR|768 fundamental rights, has given it the tools necessary to deal with persistent legislative underfunding of the state’s indigent defense system.
In Massachusetts, the constitutional grant of general superintendence power to the Massachusetts Supreme Judicial Court provides a vehicle for a direct challenge to the constitutionality of that state’s indigent defense system. The Massachusetts experience teaches us, however, that caution is in order with respect to the speed with which both the litigants and the court trigger the ultimate confrontation between judicial and legislative power. It is the court’s capital that is at issue here. Those who seek it must proceed cautiously, giving legislative bodies time to respond and develop supportive public and editorial opinion along the way.
Missouri’s experience also teaches us the importance of building support for the court’s exercise of its superintendence power in the bar, the legislature, and public and editorial opinion. It is a model that should be looked to in the many other state actions that will likely unfold in the near term, particularly as state legislatures all over the country are faced with budget crises of sometimes unprecedented proportions.
All of these powers – inherent, all writs, and general superintendence – provide jurisdictional vehicles to present state constitutional claims directly to the state’s highest court. These claims have the potential to result in decisions that will be unreviewable by the federal courts because they will be grounded on independent and adequate analyses of state constitutional provisions. And, most importantly, these decisions can secure expansive protections of fundamental individual rights – especially the right to counsel – regardless of the limits placed on federal constitutional interpretation.
Moreover, as my good friend and mentor Dean Norman Lefstein110 counsels, state supreme courts have the authority and the responsibility to ensure competent representation under the Rules of Professional Responsibility111 – not simply the effective representation required by Strickland.112 The Strickland two-part test, after all, has been only half-facetiously described by advocates as being in reality a three-part test consisting of:
(1)a lawyer with a bar card;
(2)a breathing lawyer; and
|STAR|769 (3)after substantial litigation and over strong dissent in a federal court of appeals in the sleeping lawyer cases in Texas, a lawyer who is conscious during trial.113
Indeed, considering the federal constitutional floor for competent counsel, I trust Justice Brennan would find some consolation in the fact that the states may aim higher.