Resolution in Support of Voucher-Based Models for the Selection of Counsel for Indigent Defendants in Criminal Cases
This Resolution recognizes that an inherent conflict-of-interest exists when indigent counsel is selected by a court rather than the defendant, and it recognizes that while this problem can never be entirely resolved, it can be ameliorated by policies that promote voucher-based systems (similar to school vouchers) that reject top-down, government-directed systems in favor of systems that tap into the benefits of free-market forces.
WHEREAS, the Sixth Amendment to the U.S. Constitution, incorporated by the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defence;”
WHEREAS, many jurisdictions meet this constitutional obligation by appointing counsel to represent indigent criminal defendants;
WHEREAS, this situation—in which one party in a legal proceeding appoints the representation for the opposing party—represents a conflict-of-interest;
WHEREAS, this conflict-of-interest may lead to the perception—or even the reality—of courts selecting counsel with the goal of maintaining efficient and orderly dockets, rather than the goal of finding the most zealous representation;
WHEREAS, the American Legislative Exchange Council (ALEC) is committed to solutions that would grant the defendant a greater voice in the selection of his own representation and reduce the role of the government;
WHEREAS, a voucher-system would provide indigent defendants with a voucher that could be redeemed by a defense attorney of the indigent’s choosing who has agreed to the jurisdiction’s payment schedule, and the voucher would either be worth a lump sum or a tied to an hourly rate;
WHEREAS, intermediaries such as local bar associations could provide a “screening function” that would evaluate whether eligible attorneys meet basic criteria (such as being members of the bar in good standing or not being overburdened with an excess caseload);
WHEREAS, similar systems for selection of counsel are already utilized in other common law jurisdictions including England, Scotland, and Ontario, Canada and the Texas Task Force for Indigent Defense, whose budget comes from court fees rather than taxes, plans to provide a grant to a medium-sized county to implement this approach;
WHEREAS, recent policy papers issued by the Texas Public Policy Foundation and Cato Institute explain in great detail why a voucher-based model would be beneficial;
THEREFORE BE IT RESOLVED that [insert state here] should adopt voucher-based policies that provide indigent defendants with a greater role in the selection of their legal counsel through a managed choice model.
Approved by the ALEC Board of Directors January 9, 2014.