This article originally appeared in The Guardian on June 17, 2015.
By Alexa Van Brunt
oney can buy you a great defense team, but what if you can’t afford one? More than 80% of those charged with felonies are indigent. As a result, they are unable to hire an attorney and instead rely on representation by a public defender.
Public defenders are, as a general matter, the hardest working sect of the legal bar. But our nation’s public defender systems have long been plagued by underfunding and excessive caseloads. In Florida in 2009, the annual felony caseload per attorney was over 500 felonies and 2,225 misdemeanors. According to the US Department of Justice, in 2007, about 73% of county public defender offices exceeded the maximum recommended limit of cases (150 felonies or 400 misdemeanors). Too often, those who are poor receive lower quality defense than those who have the means to pay.
The on-going decimation of public defense prevents defense attorneys from conducting “core functions,” including factual investigation into the underlying charges. In a lawsuit brought in Washington State, it emerged that publicly appointed defense attorneys were working less than an hour per case, with caseloads of 1,000 misdemeanors per year.
This state of affairs also leads to exorbitant trial delays. Consequently, roughly 500,000 pre-trial detainees sit in jail year after year before being adjudged guilty of any crime. This makes a mockery of the innocent-until-proven-guilty principle so sacred to our system of justice.
Just two years ago, then-Attorney General Eric Holder acknowledged that the country’s indigent defense systems were “in a state of crisis.” Overworked and poorly prepared attorneys were unable to provide effective representation to those they counsel, in violation of their ethical obligations to provide competent and diligent representation and their clients’ rights under the Sixth Amendment.
Holder’s words came on the 40th anniversary of Gideon v Wainwright, in which the Supreme Court held that states are constitutionally required to provide counsel to defendants unable to afford to hire their own. Four years later, the Supreme Court ensured the same right for juveniles. Gideon prompted the widespread creation of public defender systems on which so many rely.
Yet, the conditions underlying Holder’s condemnation of public defense systems persist. Though funding for indigent defense systems vary by state, such systems are unified in being cash-strapped.
Louisiana has had ongoing problems with the funding of its public defender systems since at least 1986 (controversially, Louisiana public defense is supported by the court costs and fines paid by public defenders’ own clients). Ten judicial districts in the state are slated to run out of funds to pay their public defenders as early as this month.
Other parishes have already implemented “restricted services plans” – meaning public defenders are refusing to take on new cases. Indeed, in recent years public defenders in Missouri, Kentucky and Pennsylvania have also refused to represent new clients due to an overload of cases.
The costs of relying on such overburdened attorneys to provide the primary assurance of a fair trial are significant. 95% of criminal cases end in plea bargaining. Excessive caseloads contribute to this trend, and result in a “meet ‘em and plead ‘em” system of justice, in which clients have little more than a brief conversation in the courtroom with a harried public defender before pleading guilty.
In Chicago, where I practice as a civil rights litigator, people are spending longer stints in jail (an average of 56 days for those in on drug charges.) Part of the reason is the rampant use of continuances, a sign of an overworked public defender system. Consequently, pre-trial detainees incur a “trial tax” – those who decide to fight their case are forced to stay in jail longer than those who plead guilty. Rikers island survivor Kalief Browder faced this same dilemma.
There are also clear racial implications to the poor health of public defender systems. Black people are disproportionately caught up in the criminal justice system. In 2011, black Americans – 12% of the US population – constituted 30% of persons arrested for a property offense and 38% of persons arrested for a violent offense. This group bears the brunt of our public defender systems’ underfunding and overwork.
Inadequate representation has given rise to a spate of lawsuits challenging the adequacy of public defender systems. In 2014, the New York Civil Liberties Union settled a case against New York State, which capped the number of cases court-appointed attorneys in upstate counties could take. Just this spring, an agreement was reached on behalf of juvenile defendants in the Cordele Judicial Circuit in Georgia, doubling the public defender staff and mandating that lawyers meet with their clients within three days of being taken into custody. In a rare move, DOJ filed a statement in support of the lawsuit, noting that where lawyers lack sufficient resources “it is tantamount to the system’s failure to appoint counsel.”
But civil litigation can be long and costly, and local governments should not wait to be subject to lawsuits before taking action to ensure better funding for those who provide such a substantial constitutional service.
Implementing adequate defense systems also has a significant financial cost. The Office of Indigent Legal Services in New York reported that bringing the upstate caseloads to a manageable level would require an extra $105m each year. And it also requires a re-working of our priorities. As it currently stands taxpayers shell out much more for policing and corrections than state defense.
But this is the price we must pay to comply with the Constitution and ensure justice for all, irregardless of their financial background.
- Alexa Van Brunt is a clinical assistant professor of law at Northwestern University.