Law Professor Testifies on Indigent Defense before Congressional Committee

Lexington, VA • Monday, March 30, 2009

Updated: June 5, 2009

On Thursday, June 4, 2009, Prof. Erik Luna offered additional testimony on the issue of federal funding for indigent defense at a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security. While Prof. Luna supports efforts to require states to meet their Sixth Amendment responsibilities, he objects to the creation of a new federal agency, the National Center for Defense Services, and worries that such an entity would become a policy making body with powers outside the established Constitutional framework.

Read Prof. Luna's Recent Testimony

Originally posted March 30, 2009.

Erik Luna, right, testifies before Congress

Read Prof. Luna's Testimony

Sixth Amendment Obligation of U.S. States
Listen to Prof. Luna explain the responsibilities individual states have for providing legal services to indigent defendants.
Erik Luna, professor of law at Washington and Lee School of Law, testified last week before a U.S. congressional subcommittee on the judiciary. His remarks before the House Subcommittee on Crime, Terrorism, and Homeland Security involved a state’s ability to provide legal services to indigent defendants.

At issue is the Sixth Amendment “right to counsel” that requires states to provide legal representation to defendants regardless of their ability to pay for those services. Like many states, Michigan has been hit hard by the current economic crisis and their legal aid system is faltering due to lack of funding.

But does Congress have a duty to “bailout” those states with federal money to support indigent defense? Luna says no.

"Bad decision-making by state and local government officials is directly responsible for this current dilemma," says Luna, who specializes in criminal law and procedure. “Why should citizens in a state that meets its Sixth Amendment-based financial obligations have to pay for a state that does not?”

Luna says he too is alarmed by several recent studies from the American Bar Association and affiliated organizations that find many states failing to reach constitutional compliance with their public defense delivery systems. But he also notes that simply providing more money will do nothing to resolve the systemic problems that have created the crisis. After all, says Luna, the laws states create and enforce are discretionary. Their Sixth Amendment obligations kick in only after they have decided to prosecute.

“State officials ought to be encouraged to meet their obligations, whether by increasing funding of indigent representation or by easing sometimes dubious criminal laws and punishments that overload the court system with arrests and prosecutions.”

Currently a visiting faculty member, Prof. Luna will join the permanent faculty at W&L next year as Prof. of Law. An expert in the U.S. criminal justice system and comparative criminal justice, Prof. Luna's varied experience includes service as a Fulbright Scholar teaching restorative justice in New Zealand and as a visiting scholar in Germany at the Max Planck Institute for Foreign and International Criminal Law, the world's foremost center for the comparative study of criminal law and procedure. He is also an adjunct scholar with the Cato Institute, a public policy research foundation.

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