Indigent defense funding: A major and underappreciated issue

Terminology note for this post: When I talk about public defense, I mean the defense, in a criminal case, of someone who can’t afford a lawyer, by a lawyer whose job it is to defend indigent clients. When I talk about indigent defense, I mean both the public defense system, and the common system, used because there are far too many indigent clients for most public defense systems to handle, of conscripting private lawyers into defending indigent clients in criminal cases.

The Marshall Project, which is in general a great source for news and commentary about the criminal legal system, has an excellent and disturbing three-part series out about underfunded public and indigent defense in Louisiana and other states. The articles talk about group plea deals involving dozens of indigent defendants from unrelated cases, long waiting lists for indigent defense services, the single public defender of one Louisiana parish (working with no health insurance) handling up to 50 cases simultaneously (including major felony cases), defendants who only get thirty seconds to speak with their lawyer before pleading guilty to felonies, insurance and real estate lawyers conscripted into indigent defense, and much more.

The Sixth Amendment Center has much more. This report talks about denial of counsel for misdemeanor cases around the US. It notes that in one Michigan county, which imposes a $240 charge for all misdemeanor legal representation, 95% of defendants waive having a lawyer at all and 50% plead guilty at their first appearance. It notes that 13 states have no statewide structure to ensure public defense, and nine states have a statewide structure but misdemeanor prosecution takes place outside that structure. It has chilling publications on the state of indigent defense in Utah (where according to the Marshall Project, 62% of misdemeanor defendants have no access to a lawyer), Delaware, Nevada, and Mississippi. It has news and state-by-state data on indigent defense systems.

Let me tell you a story.

Not very long ago, I was a criminal defendant, and was acquitted at trial of two charges, with the third dropped. As is not uncommon with high-profile political defendants, I had strong representation. I was represented by lawyers from the Mass Defense Committee of the National Lawyers Guild of Massachusetts. My lawyer, though experienced, was not a criminal defense attorney, but during the late stages, the trial and trial prep, he had a co-counsel, my other lawyer, with experience defending activism-related criminal cases. Over 14.5 months, I had many meetings with my lawyers, both in my original group of defendants and on my own. As much as I didn’t want to take a deal admitting responsibility when I didn’t think I’d committed a crime, the prosecution was pushing for jail time, and I was terrified and unsure – and my lawyers had many long conversations with me about what was likely, what was possible, what our strategies could be. Despite how long the process takes, how many hours of work, my lawyers were able and willing to push through to trial – they are busy people, but not to the point of barely keeping their heads above water. During the trial, my lawyer spent hours composing his closing statement (I think he called me about six times the evening before the last day of trial to ask for my feedback on different things he wanted to put in). We had detailed discussions about what my options were, what was happening, relevant case law. Since I was testifying in my own defense, we had witness prep, with a simulated direct examination, and a simulated cross examination in which another lawyer from the NLG Mass Defense Committee, a tough career public defender, played the part of the prosecutor and critiqued my performance as a witness afterward.

Granted, I also experienced a downside to being a high-profile political defendant – the District Attorney’s office threw everything they had at me, in a way that would not have happened if I had been an ordinary misdemeanor defendant (I could make that a post in its own right, because it’s a pretty absurd story, but it’s out of scope for this post). However, it is still true that if I had been an ordinary defendant, and couldn’t pay for a private attorney, I would not have been able to fight my case the way I did. And without an attorney with the time and resources to know the case in depth, to give me individualized attention, to have the resources to push it to trial without breaking the (time, energy, resources) bank and have that reflected in tone and attitude when we discussed options, I would have been more likely to be confused and frightened into caving.

Everyone should have that. An attorney who can afford to follow through on a client’s right to trial, gain real familiarity with their case – that’s the basics of effective representation. There’s an unfortunate stereotype of public defenders as bottom-rung lawyers who couldn’t get anything better. That stereotype is definitely not true for the people I’ve met who work in public defense, and in big cities, despite the abysmally low pay in many states (local folks, that includes Massachusetts), public defense jobs are highly competitive. And there is some evidence that career public defenders get their clients more acquittals and shorter sentences than private attorneys conscripted by the courts for indigent defense. The problem is that we don’t dedicate enough resources to indigent defense, even as the need for resources has grown. Mother Jones has some distressing statistics on how much time attorneys on indigent defense cases are actually able to spend on cases, vs how much is recommended by national advisory bodies. And how much money states have to spend on defense per case. Even the highest-spending states average well under $50 per case. It’s grotesque. The Yale Law Journal, in an essay warning public defenders to be wary of implicit racial bias in how they prioritize cases, likened indigent defense to medical triage, “determining which clients merit attention and which ones do not.”

According to the Marshall Project’s first story in the above-linked set, 90% of criminal defendants in the US qualify as indigent. According to the same story, since the constitutional right to counsel was established by Supreme Court decision Gideon v Wainwright in 1963, the rate of incarceration has more than quadrupled. Mass incarceration has put the current strain on public defense systems. But the strain on state indigent defense systems also feeds mass incarceration. Defendants with public defenders who take their cases to trial are twice as likely to be convicted as those with non-indigent-defense private attorneys – disparities not explained by case characteristics, amount of evidence presented at trial, and attorney skill. The underfunding and overworking of public defense offices promotes burnout and high turnover, which promotes longer sentences, as a 10-year veteran public defender, on average, reduces length of incarceration by 17% compared to a first-year public defender. The fact that we don’t properly fund public defense, and either throw unfunded mandates at public defense systems, or contract out indigent defense to (sometimes unpaid) private attorneys who may know little about criminal defense and have paying clients to deal with, leads to more convictions and longer sentences, as indicated by both some of the links in the previous paragraph, and this study of the federal indigent defense system, which found that the difference also had a disproportionate impact on people of color and immigrants.

In other words: More experienced public defenders do better for their clients than less experienced ones, but the overwork and underfunding burns public defenders out. Public defenders do better for indigent clients than court-appointed private ones, but in many locales, public defense systems simply can’t afford to take on more than a small fraction of the indigent cases. And private non-indigent-defense defenders, in a comparatively luxurious situation as they take cases voluntarily and can charge clients who go to trial for the extra time spent on the case, are more likely to get their clients acquitted than public defenders, who are working with very limited resources.

What can we do about this? I’d like to see the anti-mass-incarceration movement place more emphasis on indigent defense funding. You can learn a lot about your state’s system and how it is funded on the Sixth Amendment Center’s website and on your state government’s website. You can pressure your state legislature and governor. But even more than that, right now, state indigent defense gets very little federal funding. And compared to a lot of what the federal government spends its money on, funding states’ indigent defense systems with vastly more money than they have access to now would be a financial drop in the bucket. The government could also adopt national standards for indigent defense systems. You can contact your representative, your senators, the president, the Department of Justice, about these issues and the increased role that the federal government ought to be taking. You can make this an issue in your protest organizing, or run an awareness campaign.

As this will probably and unfortunately be a medium or long term goal, you can also donate to the Sixth Amendment Center, which provides indigent defense systems evaluation, standards development, and public education/awareness-raising. Or to Gideon’s Promise, which provides training, continuing education, mentorship, and leadership development, for aspiring and current public and indigent defenders, primarily in the South, where the need is most dire. And you can share information with others about this underappreciated issue.

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