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Home > Journals > Michigan Law Review > MLR > Volume 125 > Issue 3 (2026)

 

Abstract

The Constitution guarantees a right to counsel in criminal cases, but indigent criminal defendants are commonly left to languish in jail without legal representation for weeks, months, or even years before counsel is appointed to represent them. These delays are not isolated anomalies. They are systemic features of indigent defense delivery in many states, and the judiciary has begun to intervene. Courts in Maine, Massachusetts, Missouri, and Oregon have recently declared these delays unconstitutional and are ordering defendants released, dismissing charges, and imposing structural remedies to address these systemic failures.

This Article examines and synthesizes this emerging body of case law. It identifies the structural causes driving appointment delays, explaining why jurisdictions that rely heavily on private attorneys for indigent defense are especially likely to have unconstitutional delays in representation. Drawing on decades of judicial precedent, the Article articulates a framework for determining when the Constitution requires counsel’s presence. It then applies that framework to explain why counsel must be appointed at—or closely following—the initiation of adversarial judicial proceedings and must thereafter be in place continuously until the end of the critical early investigation period. Finally, the Article evaluates the remedial strategies courts are employing. It concludes that state court litigation combining civil rights claims with common law writs is uniquely positioned to provide immediate relief to unrepresented defendants while also catalyzing durable systemwide reforms, including greater reliance on institutional public defender offices.

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