In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen out of twenty-two statewide public defender systems operate with yearly caseloads that are significantly higher than the ABA recommends.

This Note argues that courts should utilize the procedural ineffectiveness presumption that the Supreme Court made available in United States v. Cronic to find state defense counsel carrying caseloads above the ABA-recommended maximums constitutionally ineffective. Thus, defendants could not be tried until caseloads in the locality fell within the maximums. This would incentivize state and local legislatures to spend more money on indigent defense.