In 1961, Clarence Earl Gideon was charged with breaking and entering with intent to commit petty larceny. Appearing without counsel, Gideon invoked reverent authority:
The United States Supreme Court says I am entitled to be represented by Counsel.
Those words set in train a chain of events that confirmed, three years later, the right of indigent defendants in criminal proceedings, upon request, to have counsel appointed both during trial and on appeal. Qualified counsel, however, is scarce and there is an abundance of indigent defendants. Over the years the state has chosen to solve the problem of matching counsel to indigent defendant by fiat. Judge Posner in US vs Ely justifies this as follows:
There are practical reasons for not giving indigent criminal defendants their choice of counsel. Appointed counsel are not paid at munificent rates under the Criminal Justice Act, 18 U.S.C. § 3006A(d); in the Central District of Illinois, in the most recent year for which data are available (1980), the average fee per case under the Act was only $426.31. Director of Adm. Off. of U.S. Cts., 1982 Ann.Rep. 511 (Exh. C-1). The best criminal lawyers who accept appointments therefore limit the amount of time they are willing to devote to this relatively unremunerative type of work; some criminal lawyers, indeed, only reluctantly agree to serve as appointed counsel, under pressure by district judges to whom they feel a sense of professional obligation. The services of the criminal defense bar cannot be auctioned to the highest bidder among the indigent accused — by definition, indigents are not bidders. But these services must be allocated somehow; indigent defendants cannot be allowed to paralyze the system by all flocking to one lawyer.
Time to sharpen pencils and put on the thinking cap. For a graduate student looking for a topic in market design, I cannot think of a more interesting question than how to match counsel to indigent defendants. One has: moral hazard (on the part of attorney), asymmetry of information (how does one distinguish between a good lawyer and a bad one), informed third parties with divided interests (Judges who appoint counsel, but may be more interested in a speedy trial than a vigorous defense), budget constraints (on the part of defendants) and competing objectives (speedy resolution vs. correct adjudication). For a description of the institution as it is currently structured and a proposal to revise it based on vouchers see Friedman and Schulhofer (yes Friedman fils).