Carol S. Steiker, Gideon at Fifty: A Problem of Political Will, 122 Yale L.J. 2694 (2013).
Abstract: Although it is fitting to celebrate Gideon’s promise of representation for indigent criminal defendants at this landmark anniversary, it is important also to note that part of Gideon’s legacy should be our recognition of the limits of law in the fulfillment of that promise. Law’s most powerful role in the struggle to ensure adequate representation for the poor in criminal cases will be in its capacity to generate and direct the political will to produce institutional change. The critical question to ask is how law can help to move the political actors who control the power of the purse, the organization and administration of indigent defense services, and the shape of the substantive criminal law to allocate the resources and make the institutional changes that are necessary to fix what in many jurisdictions is a failing system of indigent defense. Although there is no silver bullet, there are a variety of complementary strategies that can and should be pursued. These strategies include working for legislative change to limit the scope of the substantive criminal law, promoting the success of structural reform litigation in both federal and state courts, enlisting the support of state bar overseers and associations as well as the ABA, enlisting the private defense bar and NGOs that specialize in criminal defense to set higher norms of practice, urging greater federal government involvement in promoting indigent defense reform in the states, promoting social entrepreneurship to generate creative solutions to the indigent defense crisis, and harnessing both the great power of the media to educate and motivate the public and the more targeted power of the legal academy to educate and motivate the next generation of lawyers to address this pressing problem.