Reprinted with permission of the Saint Louis University Law Journal © 2017
St. Louis University School of Law, St. Louis, Missouri.

NAPD General Counsel Stephen F. Hanlon has published an article entitled “The Appropriate Legal Standard Required to Prevail in a Systemic Challenge to an Indigent Defense System" in Vol. 61, No. 4, Summer, 2017, St. Louis University Law Journal, pp. 625-664.  

In this article, Mr. Hanlon argues that the constructive denial theory currently being litigated in several systemic indigent cases around the country fails to provide a principled analytical standard that can be met with a focused evidentiary showing using the kind of reliable data and analytics needed to certify a class and prevail on the merits in a pre-trial class action challenge to a state’s indigent defense system.

Mr. Hanlon argues that in order to prevail on a pre-trial claim asserting systemic Sixth Amendment violations and seeking systemic prospective injunctive relief, plaintiffs must prove that there is a significant likelihood (or risk) of substantial and immediate injury to the class — that is, prejudice, at both plea and trial — because the defendants lack the capacity to provide to the class reasonably effective assistance of counsel under prevailing professional norms at all critical stages of the proceedings.  Stated more succinctly, his proposed test is: a significant risk of prejudice due to a systemic inability to perform.  

Mr. Hanlon finally argues that we now have the kind of reliable data and analytics to prove this claim with the ABA’s workload studies that have been published in Missouri and Louisiana.

You can click here for a pdf of Volume 61; it is cross-posted on SLU LAW's website.