Clara Foltz was the founder of the public defender movement, and she created the first published proposal for public defenders through the text of her 1893 speech at the Chicago World’s Fair. She envisioned the public defender as a powerful figure capable of challenging the prosecutor, making criminal proceedings “orderly and just.” Crucially, Foltz imagined public defenders to match prosecutors in both numbers and resources. As the first female lawyer on the West Coast and a criminal defense attorney, Foltz was aware of the ways in which other systemic actors were biased against her clients and her, as an attorney. Prosecutors routinely attacked Foltz and her client at the same time. This background influenced Foltz’s belief that a defender should be on equal standing with the prosecutor, if not even more highly regarded, because defenders sometimes represent innocent clients. Foltz spent the rest of her career advocating for her bold vision.

In 1963, the Supreme Court decided Gideon v. Wainwright—a watershed moment in criminal procedure. The Court held that in all criminal prosecutions, the accused has a right to counsel, guaranteed under the Sixth Amendment and made obligatory to the states under the Fourteenth Amendment. Seventy years after the Chicago World’s Fair speech, Foltz’s vision became more of a possibility than ever before. Acknowledging the adversarial nature of the criminal justice system, the Gideon Court saw the right to counsel as fundamental. The “noble ideal” of equality before the law, the Court found, cannot be realized until all defendants have access to counsel.

Fifty years later, Gideon’s promise rings hollow for most individuals brought into the criminal justice system. Studies at a systemic level show how legal representation in criminal charges is lacking. In clear contrast with Foltz’s vision, the Brennan Center for Justice noted that in 2007, state prosecutors had total budgets of $5.8 billion, while state and local public defender offices spent only $2.3 billion. There are also powerful individual stories: the public defender in Ramsey County, Minnesota, whose caseload leaves him an average of twelve minutes to represent each client; and Orleans Public Defenders’ decision to stop taking some felony cases because the office simply did not have the capacity to handle them (attorneys faced a workload that was twice the standard recommended by the American Bar Association).

There should be no illusion that a public defender capable of spending only twelve minutes on each client can provide the defense that Foltz envisioned and the Gideon Court crystalized into law. Still, the Court has done little since Gideon to ensure that defendants facing criminal charges receive effective representation. Two of the most relevant post-Gideon cases were decided on the same day in 1984: Strickland v. Washington and United States v. Cronic. Both cases involved defendants who sought to overturn their convictions through claiming ineffective assistance of counsel—a violation of the Sixth Amendment.

Cronic was a promising case for indigent defendants. While Strickland governs cases where a defendant alleges actual ineffective assistance of counsel and places a high evidentiary burden on a defendant to win such a claim, Cronic controls where a defendant claims that the adversarial process itself has failed, even without specific evidence of an attorney’s ineffectiveness. In Cronic, the defendant alleged that the circumstances surrounding the case, including the fact that his lawyer was appointed twenty-five days before trial while the government spent four and one-half years investigating the case, prevented his lawyer from effectively representing him. The Cronic Court agreed that there are circumstances where a defendant does not have to prove specific examples of prejudice, but can instead argue about the circumstances surrounding the defendant’s representation. However, the Court established a narrow set of circumstances where this claim can win: where there is complete denial of counsel, and the counsel “entirely fails” to meaningfully test the prosecution’s case. This narrow set, combined with the fact that 94 to 97 percent of cases end in plea deals, deny the vast majority of defendants the opportunity to make a Cronic-type post-conviction argument and mean that the Court has offered little to make Gideon’s mandate come to fruition.

In the framework of post-conviction claims of ineffective assistance of counsel, Strickland and Cronic still dominate. However, that has not stopped some state courts from making a more earnest attempt at strengthening access to counsel, and it is worth examining the most bold example: Kuren v. Luzerne County (Pa. 2016). Kuren was a class action lawsuit filed by individuals charged with crimes in Luzerne County as well as the public defenders expected to represent them. In contrast with the individual post-conviction claims governed by Strickland and Cronic, Kuren was a systemic and prospective claim. The plaintiffs in Kuren alleged a number of systemic violations: caseload sizes prevented attorneys from attending all hearings, representation by overworked attorneys led to unfavorable plea bargains, and trial preparation was conducted at the last minute, among other examples.

In Kuren, the Supreme Court of Pennsylvania recognized, for the first time, a cause of action that allows a class of indigent criminal defendants to allege systemic and prospective violations of the right to counsel due to underfunding. The remedy would be an injunction that forces a county to provide the public defender’s office with sufficient funding. Importantly, the adopted standard was “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” This standard creates room for systemic evidence without requiring individual defendants to out forward specific evidence of attorney performance in their own cases. Under such a standard, class action lawsuits are more feasible.

Kuren’s cause of action, if adopted by the Supreme Court, would vastly expand the ways in which plaintiffs can prevail on a Sixth Amendment right to counsel claim. Conceptualizing the right to counsel systemically leads to a more realistic analysis of the criminal justice system in the era of mass incarceration. The right to counsel is essential at all stages of the adjudication process, even for those who take plea deals. Furthermore, some of the most pervasive flaws in the adversarial process may not be apparent by examining cases in isolation. A single data point will not demonstrate the trends of high workloads, lack of resources, and inability to adequately test the prosecution’s case, that are characteristic of public defender’s offices. Further, in the individual case, a court can only provide a remedy for the individual, leaving the underlying systemic causes that contributed to the ineffective representation in place and countless other similarly situated individuals in danger.

It is probably unrealistic to expect that a Kuren-like test will be adopted by the Court anytime soon, given its resistance toward making even Strickland or Cronic a more viable path for defendants. Even so, Kuren shows that courts can be willing to recognize a systemic cause of action that can assert the rights enshrined in Gideon. Just recognizing this sort of class action lawsuit can do a lot of work in itself. After a similar recognition in New York’s Court of Appeals, a settlement between the parties included provisions such as a promise to provide an attorney to every criminal defendant at a first court appearance and a $4 million investment to strengthen communication between defendants and their attorneys and improve training programs.

Kuren also serves as a useful framework for right to counsel challenges going forward. More than other legal actors in the criminal justice system, public defenders are acutely aware of the ways in which the criminal justice system denies defendants fair process. Public defender’s offices can compile statistics and personal narratives that reflect systemic injustices. Given a legal standard of “likelihood of substantial and immediate irreparable injury,” there is a lot of room for public defender’s offices, and communities most targeted by the justice system, to shape discourse within courts. For example, there are many irreparable harms associated with taking a plea deal when a defendant might otherwise want to contest a charge—jeopardizing public housing or a housing voucher, for example—that plaintiffs can show in order to explain why plea deals resulting from subpar resources are so harmful. These issues are increasingly part of mainstream discourse, but they are not emphasized enough in court.

The criminal justice system is broken, and that has led some, most notably Michelle Alexander, to discuss “crashing” the system by encouraging many more defendants to go to trial. Crashing the system is one (admittedly blunt) way to overcome the collective action problem that allows prosecutors to secure plea bargains even in weak cases. However, crashing the system involves sacrifice at some level—some defendants risk longer prison sentences in pursuit of systemic change. The moral implications of this strategy are still up for debate. A successful settlement or win in a Kuren-like case is a way to achieve similar ends—they create a legal requirement that the state provides funds to allow defendants to contest their charges, and if the state cannot do that, the cases must be dropped. Cases like Kuren bring us a step closer to fulfilling Gideon’s mandate and honoring Foltz’s vision of justice.