State Politics and the Right to Counsel: A Comparative Analysis


  • The authors are indebted to the Spangenberg Group and the National Center for State Courts for making their data available in the public domain; to Carroll Seron and three anonymous reviewers for their helpful comments; and to Hilary Worden for assistance in data collection. The authors are responsible for all opinions and conclusions expressed herein. Earlier versions of this article were presented at the 2005 meeting of the American Society of Criminology in Toronto, Ontario, and the 2007 meeting of the American Politics Group in Leicester, United Kingdom.

Please address correspondence to Andrew Lucas Blaize Davies and Alissa Pollitz Worden, School of Criminal Justice, University at Albany, State University of New York, 135 Western Avenue, Albany, NY 12222; e-mail:, or


One of the most significant recent developments in the study of crime and justice is the emergence of theoretical explanations for the dramatic changes in criminal justice policy over the past few decades. These theoretical accounts address not only highly visible developments, such as the meteoric rise in incarceration rates, but also less-conspicuous shifts in due process and civil liberties, and they do so by attributing more-repressive policies to the emergence of a political culture that has substantially redefined crime and justice. This article focuses on an important due process issue, the legal representation of indigent defendants in criminal courts. We describe the state of indigent defense policy, particularly structure and funding, across the states in 2002, and analyze variation on two dimensions where states may exercise discretion: the extent to which states assume responsibility for funding services (rather than relying on local governments), and the generosity with which these programs are funded overall. We test hypotheses that link funding for services with the ideology of state political leadership, public values about tolerance and race relations, and states' public welfare policy climates. We find little support for the prediction that a welfare climate shapes more progressive indigent defense policies. However, the results suggest that the racial threat hypothesis helps account for spending on indigent defense, and that Republican control of the statehouse results in the perpetuation of local responsibility for program funding. Normative literature on indigent defense suggests that the patterns we observe may have important consequences for the quality of indigent defense services across states. Further, the findings reported here suggest that the politics of the punitive turn, as it has played out across the states, may be responsible not only for shifts in crime control policy, but for due process policy as well.