Janet Moore

Isonomy, Austerity, and the Right to Choose Counsel

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped the nation’s first pilot study on counsel choice in a public defense setting. Those commitments sharply limited the measure of counsel choice offered and left the study with insufficient data to support generalizable conclusions. Thus, the study underscores questions about whether an equal right of counsel choice can be meaningful under conditions of austerity and might actually aggravate instead of ameliorate system deficits. The Article concludes that while meaningful counsel choice for poor people may be elusive, the constitutional interests at stake nevertheless warrant elimination of overt class-based discrimination from the vindication of a fundamental right.