In (Slightly Uncomfortable) Defense of ‘Triage’ by Public Defenders

John B. Mitchell


This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will play no role in either enforcing basic levels of attorney competence or in even recognizing the reality of institutional defense players. However, the author ultimately objects with Professor Freedman because the author does not think that public defenders should face the problem head on. Instead, the author is optimistic and provides an involved and effective system of “pattern representation” to ensure competent representation.