Indigent Defendants and the Crisis in Public Defense

The popular depiction of a public defender will likely reflect the polarity of the justice system itself. For some, she is the shield against governmental abuse of power, a skilled interlocutor who stands for the working class, the indigent, and the disenfranchised. For others, he is the beleaguered civil servant, overwhelmed with cases and at risk of letting the “bad guys” walk free. Neither claim is entirely true. The increasingly polarized nature of society fails to capture the nuance into which the institution of the public defender has matured. It’s creation, though, is rooted in a particularly oppositional system. A system whose avatar, the blindfolded lady justice holding a pair of scales, represents the dual nature of justice: the guilty and the innocent.

There are several essential differences in the role of the public defender in the justice system. It is not merely the mirror image of the prosecutor. The institution of free, competent, and more-often-than-not compulsory public defense has created a system in which defenders face unique obstacles in both public perception and in their belated, and rather unplanned, genesis in the pursuit of justice. Simply put, the fact that the system was created with inherent prejudice against the impoverished defendant is proof that a major overhaul in the way we do justice is vital. In the absence of full economic and political support of all levels of government, the public defender may not be able to fulfill its duties to the public, especially with regard to the indigent population. Progress in the legal system has been quite slow, though a landmark amendment to the U.S. The Constitution has resulted in some positive changes.

The office of the public defender is rooted in the adoption of the Sixth Amendment of the U.S. Constitution in 1789:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The founding fathers appear to have quickly corrected the gap in equity between the power of the state and the people. However, this right only applied to federal cases, and only when the defendant could afford counsel. This right was guaranteed not long after the birth of this nation, but was written in such a way that the defendant carried the financial burden of counsel. This convention lasted over one hundred years. That is, until Powell v. Alabama (1932). This landmark ruling of the Supreme Court supplied counsel for eight black youths who had been sentenced to death in a hasty trial without the benefit of counsel.¹

Powell made the first major inroad toward the formation of the public defender system, but it was not until the Gideon v. Wainwright decision in 1963 that the Supreme Court recognized the due process clause of the Fourteenth Amendment was violated when indigent defendants could not afford to retain counsel unless it was appointed by the court.² To put things into greater context, according to the Supreme Court, the United States had enjoyed almost two hundred years of unbalanced power over the poor before “reason and reflection require us to recognize that in our adversary system of criminal justice, any person […] who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Curiously, though the idea of the public defender has its roots in federal structures it would not take shape until a municipality in California took action.

The city of Los Angeles created the first municipal office of the public defender in 1914, but the enshrinement of this office into national law would take many decades to come to fruition. Indigent defense largely relied on informal, local or specialized charitable organizations. For example, the ACLU was formed in 1920 as a response to the civil liberties being threatened by post-WWI anti-communist “Palmer raids.”³ The Southern Poverty Law Center formed in 1972 in response to the institutional racism of the American Civil Rights era.⁴ The earliest legal aid society in the U.S. was also aimed at representing the poor, immigrant German population in the last quarter of the 19th century.⁵ The Gideon ruling was the culmination of groundwork laid by charitable organizations who had been trying to fill a gaping hole in the justice system. But despite that system’s acknowledgment and remedy of this deficiency, inequality still looms large over the poor today.

If the justice system finally provided parity in representation across classes, did this mean that prosecutions of the indigent decreased in proportion to those that were able to afford private counsel? Even with access to a public defender or appointed lawyer the rates of incarceration for the undereducated, especially minority men, have skyrocketed in the years since Gideon. The high correlation between poverty and minorities in the U.S. mean that the overwhelmingly large minority prison populations were represented by indigent defense counsel during trial. One research study found that incarceration rates among the college educated have barely increased since 1972, yet black, male, high school dropouts saw a 25-fold incarceration increase between 1972 and 2010.⁶ The Brookings Institute provided further evidence of overrepresentation of the poor in prison populations when they found that over 80% of the total prison population between 2009-2013 were either unemployed or living below the poverty line within three years of imprisonment.⁷ If the increase in indigent representation has not resulted in a decrease in convictions, other factors must be at play.

One major factor in the disparity in effective counsel is likely the very thing that brought about the creation of the public defender: lack of money. Government-employed public defenders generally have budgets and resources adequate to meet the standards of “effective counsel” as described by the Sixth Amendment to the Constitution. However, there are far more accused indigents than there is manpower to meet their needs. One way the government has attempted to meet that need is through the appointment of counsel. That is, lawyers who have agreed to take cases in excess of that which the public defender can manage. They are not trained in the same system as a public defender, and are paid a pittance for their skilled services. One overburdened city in America is an example of an unfortunate norm in public defense. Take, for example, the city of Philadelphia. Despite having the 12th highest murder rate per 100,000 people in the U.S., only one out of five defendants in capital cases are represented by the county’s public defender. The remaining four are appointed counsel.⁸ 95% of murder defendants cannot afford private counsel. Appointed attorneys, then do the lion’s share of the legal work for people facing the most dire consequences from their accusers. The funds allocated to them for their defense per case is shockingly low. Steven Bright, president of the Southern Center for Human Rights called the fee schedule “outrageous even by Southern standards.”¹⁰ A judge presiding over these cases in Philadelphia called the compensation “grossly inadequate.”¹¹ If this is true of a large metropolitan area with a considerable tax base, imagine the lack of resources available in jurisdictions with poor funding. It stands to reason that poor jurisdictions would be home to equally poor defendants. But it is not merely a matter of funding.

The sheer number of cases has contributed to a defense system in which 95-97% of state and federal defendants, respectively, plead guilty. ¹² That is not to say even the majority of those parties are not guilty, though one must marvel at a justice system in which prosecutors are afforded broad discretion when deciding which cases to pursue and which to decline. They certainly have a vested interest in building cases virtually guaranteed to result in conviction. A public defender enjoys no such freedom and, indeed, is required to take on every case referred to it regardless of any disparity in resources.

In 2002, the American Prosecutors Research Institute, on a grant from the U.S. Department of Justice, published a report with recommendations for prosecutor caseloads. Among the various assessments was whether the defendant had retained private defense counsel or had a public defender assigned. While acknowledging the large caseload for the public defender, it quite tellingly made the observation that private attorneys extend court processes by asserting their client’s rights to “discovery hearings, filing motions, and requesting continuances.”¹³ The report goes on to claim that private counsel use these legal maneuvers in order to extend trials in the interest of profit.¹⁴ It does not mention the fact that both prosecutors and public defenders also use hearings, filings, etc. to strengthen their cases.¹⁵ The implication that criminal defense as a discipline is somehow less noble than prosecution is made clear.

The problem of caseload is one that exists on both sides of the aisle, though it seems evident that defenders are the more beleaguered, less well funded, and ultimately less appreciated by the public. One defense attorney in New Orleans had 194 felony cases on his desk, with dozens more being added as the year moved ahead. Just his caseload alone was equivalent to the work of five full time lawyers working for a year. One of his colleagues had 413 cases. The same article quoted a Louisiana judge who wrote that the “state was failing miserably at upholding its obligations under Gideon.”¹⁶
The structural challenges to indigent defense are not the only ones. As mentioned earlier, the overwhelming majority of indigent cases are minorities, and social scientists have found that implicit biases against minority defendants is powerful enough to affect the triage of their cases by defense counsel.¹⁷ That is, the amount of time and energy spent in ensuring a vigorous and thorough defense of clients is verifiably affected by their race and ethnicity.

The crisis at hand is an unfortunately broad one. The public at large is being short-changed by the very government they have entrusted with providing fairness in legal matters. The prosecution is burdened with a system that seems to place great emphasis on the number of “wins” they produce, rather than the pursuit of true justice. Public defenders are indeed the beleaguered civil servants doing their best to clear cases from their overwhelmingly large caseloads. At the bottom of the list we find some of the most vulnerable members of society, who have only relatively recently been given the means to receive an effective and appropriate defense. The situation calls for rather extreme reforms both structurally and in the way we fund our justice system. The very perception of public defense should be altered such that empathy and compassion are the cornerstones of the system, while its fundamentally adversarial, punitive nature takes a back seat.

Endnotes

1. “ASSISTANCE OF COUNSEL,” LII / Legal Information Institute, accessed December 9, 2020, https://www.law.cornell.edu/constitution-conan/amendment-6/assistance-of-counsel.
2. “Facts and Case Summary – Gideon v. Wainwright,” United States Courts, 2014, https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-gideon-v-wainwright.
3. “ACLU History,” American Civil Liberties Union, 2009, https://www.aclu.org/about/aclu-history.
4. “About Us,” Southern Poverty Law Center, 2010, https://www.splcenter.org/about.
5. “History of Civil Legal Aid | National Legal Aid & Defender Association,” www.nlada.org, 2011, http://www.nlada.org/tools-technical-assistance/civil-resources/history-civil-legal-aid.
6. National Research Council, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” Choice Reviews Online 52, no. 05 (December 18, 2014): 52-2841-52–2841, https://doi.org/10.5860/choice.185911, 66.
7. Adam Looney and Nicholas Turner, “Work and Opportunity before and after Incarceration” (Washington D.C.: The Brookings Institute, March 2018), https://www.brookings.edu/wp-content/uploads/2018/03/es_20180314_looneyincarceration_final.pdf, 8.
8. Anderson, James M., and Paul Heaton. “How Much Difference Does the Lawyer
9. Ibid.
10. Ibid, 163.
11. Ibid, 163.
12. Lisa C Wood, Daniel T Goyette, and Geoffrey T Burkhart, “The Inevitable Consequence of Crushing Defender Workloads,” Litigation 42, no. 2 (2016): 20–26, https://doi.org/10.2307/26401918, 20.
13. American Prosecutors Research Institute Office of Research & Evaluation, “How Many Cases Should A Prosecutor Handle?” (Alexandria, VA: American Prosecutors Research Institute, 2002), http://www.jmijustice.org/wp-content/uploads/2019/12/NDAA-APRI-How-Many-Cases.pdf, 9.
14. Ibid.
15. Richard A. Oppel Jr. and Jugal K. Patel, “One Lawyer, 194 Felony Cases, and No Time,” The New York Times, January 31, 2019, https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html.
16. Ibid.
17. RICHARDSON L SONG and PHILLIP ATIBA GOFF, “Implicit Racial Bias in Public Defender Triage,” The Yale Law Journal 122, no. 8 (2013): 2626–49, http://www.jstor.org.electra.lmu.edu/stable/23528687, 2630-2632.