When courts refuse to play by the rules (of law): the failure of public administration theory in securing constitutional rights

Jon Gould

Journal of Chinese Governance, 2019, vol. 4, issue 1, 34-51

Abstract: If there is any area of government in which one would expect to locate the rule of law, it would be in the courts. And, if there is any group of people deserving the protections of the rule of law, it would be the accused unable to afford an attorney. In the United States of America, the Sixth Amendment to the Constitution provides a right to assistance of counsel, and both Supreme Court precedent and federal statute extend that right to indigent defendants in criminal cases while establishing that the representation provided is at least minimally effective. However, while these rights exist on paper, their protection has gone wanting in practice as the competing goals of federal judicial administration have starved indigent defense of sufficient funding and have failed to ensure that the attorneys and representation provided are adequate. Indeed, as federal judicial administration has become more ‘professionally’ focused – deferring to the administrative expertise of staff members and emphasizing cost-effective, results-oriented management – indigent criminal defendants have seen the adequacy of their representation fall, in turn threatening the rule of law. This paper tells that story by simultaneously explaining the growth of judicial administration at the federal level in the United States and showing how the federal courts’ increased focus on bureaucratic processes and staff expertise in cost containment have endangered the most vulnerable parties in the federal criminal cases. As such, the federal courts’ over-reliance on public administration theory and their failure to balance its implementation with other central goals threatens the rule of law in their very courtrooms. There is a way out of this morass, which a committee of the federal courts has even recommended: independence of the defense function from the courts’ administrative structures. Barring that change, a central constitutionally-protected right will remain at risk.

Date: 2019
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DOI: 10.1080/23812346.2018.1556482

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