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While there are skilled private defense lawyers who enthusiastically represent indigent criminal defendants, too often defense lawyers whose income depends upon appointments provide deplorable representation. The problem is well known and pervasive. In addition to the blizzard of claims on appeal of ineffective representation, defenders' efforts have been savaged by judges and by fellow lawyers. These nagging problems persist: to induce private lawyers to represent their clients effectively by eliciting the defendant's story and managing their relationship in a way that at least does not displease the defendant; investigating his and the prosecution's positions; pressing the prosecution for discovery, for concessions and to observe the rules; and fighting at trial unless pleading guilty seems the much more advisable choice.

Efforts to solve the dual problem of choosing the right lawyer and ensuring that he behaves optimally have proven largely fruitless. One answer, not yet explored, is to adopt a voucher system: the defendant would choose the lawyer, and work out the terms of their relationship. Might a voucher scheme induce able lawyers to compete to represent indigent defendants? Might it provide a way for the defendant to monitor the lawyer's endeavors? The English model of choosing and overseeing barristers, the lawyer who usually is the criminal defendant's advocate, resembles a voucher scheme, and suggests that a similar arrangement might work in the United States.

Publication Citation

69 U. Cin. L. Rev. 273-288 (2000)