Rationing Criminal Defense Entitlements: An Argument from Institutional Design

Courts define constitutional criminal procedure entitlements, but some rights, such as the right to defense counsel, require money to become reality. Legislatures have responded to judicial definition of criminal procedure rights by underfunding those rights, yet they have not specified how limited funds should be allocated-that is, how rights should be rationed. The Supreme Court has, in fact, effectively barred legislatures from doing so through its construction of constitutional criminal procedure rules. This amounts to a legislative reduction of court-created entitlements that implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights. This Essay argues that underfunding of indigent criminal defense services is a long-term reality, and it outlines a regime by which attorneys and trial judges can most sensibly implement the job that has been delegated to them of allocating scarce entitlements. It proposes a set of default rules to accomplish this allocation task that is guided by two principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives a qualified preference to suspects facing greater potential punishments. This conscious allocation of resources substantively revises the real meaning of constitutional entitlements and leaves some defendants indisputably with less than judicial pronouncements of constitutional law imply. The Essay argues that rationing rights in light of funding limits nonetheless yields a more coherent, defensible allocation of entitlements, and that defense attorneys' roles in this project fit broadly within collaborative traditions and theories of constitutional lawmaking.