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The Fixes Our Public Defense Systems Badly Need

It isn’t just about constitutional rights and fairness. Underfunded, undervalued public defense is also costly to taxpayers. A few states are showing the way toward meaningful reforms.

A public defender argues her client’s case.
A public defender argues her client’s case. Across the country, public defense systems are underfunded and undervalued. (Shutterstock)
Oregon Gov. Tina Kotek signed legislation last month that will overhaul the state’s public defender commission, aiming to reform a system that each year leaves hundreds of defendants without the competent counsel they’re guaranteed by the Constitution.

Pennsylvania lawmakers, prodded by Gov. Josh Shapiro, this year allocated $7.5 million for public defense, a function previously funded solely and inconsistently by counties and cities. The Legislature is now considering a proposal to take things further by establishing an indigent defense committee and grant program.

And in Mississippi, this year the state Supreme Court implemented a rule that defendants must have continued access to an attorney after a preliminary hearing and until an indictment — closing a “dead zone” that left some defendants languishing in jail for years.

From Democratic-leaning states like Oregon, through swing states like Pennsylvania and into deep-red states like Mississippi, a national movement is gathering momentum for public defense reform, as states across the country are finding ways to close the gap between the ideal of the constitutional right to counsel and reality in place on the ground.

The movement is catalyzed by stories like that of Maurice Jimmerson in Albany, Ga. Arrested a decade ago for a double murder alongside four others, two of whom were acquitted by a jury in 2017, Jimmerson has yet to come to trial and tell his story in court — this despite his constitutional right to a speedy trial. Advocates attribute this delay at least in part to numerous failures in the state’s overburdened and underfunded public defense system.

In its 1963 Gideon decision, the U.S. Supreme Court ruled that criminal defendants who cannot afford a lawyer are entitled to free representation. Yet even today, in many places public defense systems are underfunded and undervalued, especially when compared to the resources provided to prosecutors. In some jurisdictions this means that defendants may have to wait months or even years to have an attorney assigned to their case or to go to trial. In others, a public defender may be forced to spend as little as seven minutes on a case.

Our adversarial justice system only has legitimacy and credibility if people can adequately defend themselves against state power. Moreover, the public defense crisis is financially self-defeating: Research shows that effective defense earlier in a case can lead to savings related to unnecessary detention and overly long sentences; a person who receives an effective defense is less likely to be incarcerated at the taxpayers’ significant expense. And evidence shows that these cost savings can be achieved without an impact on public safety.

As additional states begin to address the public defense crisis, they should be guided by two important criteria:

First, the reforms must be structural. Small funding increases for public defense that leave geographic, racial and economic disparities otherwise intact are insufficient. Public defense reforms need to create, or at least point in the direction of, state support for a comprehensive public defense system that upholds the constitutional right to counsel, provides access to a zealous defense and ensures that protection from the power of the state is not limited to just the wealthy. One example of a state pursuing such structural reforms is Michigan, which in a little over a decade has gone from being considered one of the worst states for public defense to a leading example of the power of reform.

Second, structural reforms should be predicated on and paired with robust data collection. Much more information is needed to understand how public defense operates, where non-representation occurs, and how a lack of access impacts people and communities. This data will be key to enacting future public defense reforms and evaluating their impact and effectiveness. Texas is one state that has established strong data collection and reporting standards.

Access to an adequate defense is critical to securing our constitutional rights to liberty, due process and equal protection. And it has far-reaching social and economic impacts. Over the past year, we have seen encouraging signs in states throughout the nation that policymakers from both sides of the aisle are beginning to take the crisis in public defense more seriously. Much more can and should be done.

Rebecca Silber is director of criminal justice at Arnold Ventures, a philanthropy that seeks evidence-based solutions to pressing problems and funds research to better understand the root causes of broken systems. Julia Durnan is Arnold Ventures’ criminal justice manager.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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