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Overworked and Underfunded, Public Defenders See Some Light

Poor criminal defendants rarely get an attorney who has time to adequately defend them. Some states, spurred by lawsuits, are starting to address the issue.

Few functions of government are as consistently underfunded as providing legal defense for the poor. Although the problem remains serious, there are indications that, at least in some places, it's starting to get addressed.

Missouri's top public defender drew attention to this issue last month when he attempted to assign a case to Gov. Jay Nixon to lighten his overwhelming workload due to the state's failure to fully fund his office.

"Given the extraordinary circumstances that compel me to entertain any and all avenues for relief," said Michael Barrett, "it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it."

That was a creative cry for help with a problem that exists all over the country. 

Under pressure from lawsuits and the Obama administration, some states are now seeking ways to improve and invest more in public defense. It's a natural extension of the largely bipartisan push to rethink criminal justice policies and the expenses associated with mass incarceration.

It's an issue that's long been neglected.

Several states and local jurisdictions are being sued by the American Civil Liberties Union (ACLU) and other groups over their failure to offer adequate legal defense for the poor. Among those currently facing lawsuits are California, Louisiana, Michigan, Montana and Washington state.

The U.S. Supreme Court made clear that the right to an attorney is constitutionally mandated in its 1963 decision in Gideon v. Wainwright. But public defense has remained chronically underfunded. In many states, attorneys are handling felony caseloads four or five times greater than the levels recommended by the American Bar Association.

As a result, there's no shortage of examples of people receiving inadequate counsel. Some are sentenced to long prison stays after only a single pre-trial meeting with an attorney. Many are sitting in jail while they slowly move up waiting lists to get an attorney.

"The promise of competent counsel with sufficient time and resources to devote to a defendant's case has never been truly fulfilled," said Barry Pollack, president of the National Association of Criminal Defense Lawyers. "Underfunding of public defenders and public defense in this country has been a chronic problem really since the inception of the Gideon v. Wainwright decision and the passage of the Criminal Justice Act in the Kennedy administration."

Spending money on the criminally accused has never been a top priority for legislators. What was always a persistent problem has grown more intense since the passage of laws in the 1980s and 1990s designed to crack down on crime. Those led to many more arrests -- and more work for understaffed defense offices. 

"Because of the massive number of cases in the system, it's hard to come up with the amount of money that's needed," said David Carroll, executive director of the Sixth Amendment Center.

The situation has grown so dire in many places that it's now getting attention from the federal Justice Department. The department is devoting time and sometimes funding to address the issue, filing briefs in lawsuits against states and providing grants to states and localities.

In light of a legal challenge in Idaho, the state passed legislation this year meant to improve legal services for the poor by setting and enforcing better standards, and giving counties $5.4 million to abide by the new law.

New York also settled a lawsuit that spurred the state to provide additional funding for indigent defense two years ago. Since then, the legislature passed a bill that would provide funding for public defenders in all counties, with the state picking up the full tab by 2023.

Gov. Andrew Cuomo, however, has yet to sign the bill or signal whether he intends to.

In Utah, legislation spurred lawsuits rather than the other way around.

After studying the issue for several years, Utah state Rep. Todd Weiler said he found the state of public defense "shocking to say the least." He sponsored a bill, signed into law in March, that created an Indigent Defense Commission in his state. It will set standards for county criminal defense systems to meet and provide money from a trust fund to help them along the way. Similar bills are in the works in Indiana and Mississippi.

Utah, like Idaho, previously provided no money for public defense, leaving it up to counties. 

But not long after the passage of Utah's new law, the ACLU sued the state over the inadequacy of the system. The new law wasn't enough to erase doubts about its efficacy.

"For the first time in 40 years, we're trying to make a worthy attempt to tackle this issue, and now we've got kind of sidetracked with the ACLU," Weiler told the Salt Lake Tribune when the lawsuit was filed. "It would be nice if they actually gave the commission a chance to get to work."

Indigent defense may be getting heightened attention. But the piecemeal nature of this issue -- with the feds, states, local governments and outside interest groups holding myriad debates about how to increase funding and who should be responsible for it -- means that the longstanding problem is not going to be solved in any kind of a hurry.

"It's not a coincidence that there have been many of these lawsuits because the problem exists in many places," said Ezekiel Edwards, director of the ACLU's Criminal Law Reform Project. "What you've seen generally across the country is a rise in caseloads and a decline in staff."

*CORRECTION: In a previous version of this story, the National Association of Criminal Defense Lawyers and the president of the organization were both incorrectly named.

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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