The sixth amendment guarantees all citizens the right to a fair trial, and that ought to include a decent lawyer. But as states continue to cut funding for public defenders, America’s poorest defendants are suffering the consequences. The ones lucky enough to actually be provided legal assistance typically are stuck with an overworked, underpaid, and undertrained attorney. These overburdened public defenders are known to spend only a few minutes with their clients before advising them on how to plead.
Greg Bright served 27 and a half years in an Angolan prison for a crime that he did not commit. His public defender conducted no investigation, failed to dispute the problematic testimony of the lone witness, and presented virtually no defense, leading to Bright’s wrongful conviction. He was finally released in 2003 after years of appeals. Bright’s story is by no means unique. In fact, many of the wrongfully accused face years on death row before being exonerated, largely stemming from an inadequate legal defense.
But the lawyers are not to blame. Public defenders are not provided the money to pay for expert testimony, mental health evaluations, independent investigators, and general information necessary to build a case. District attorneys, on the other hand, have significantly greater resources, including the support of the police force. In this way, the deck is already stacked against indigent defendants.
Public defenders also take on huge case loads, far surpassing the recommended amount. According to a 2009 report by the Constitution Project, public defenders can carry as many as 500 active felony cases at a time and as many as 2,225 misdemeanor cases. Josh Hayne, a former public defender in Massachusetts, said “We could do more for [clients] if we had fewer cases. When it comes down to it, you always feel like there were more things you should have done.”
Sometimes defendants are even forced to do jail time until a lawyer is available. In 2013, a man in Louisiana spent five years in jail waiting for the state to come up with enough money to provide him counsel, and the Supreme Court neglected to rule on the case to strengthen the rights of the indigent. This was 50 years after the Gideon v. Wainwright Supreme Court case, which reaffirmed every American’s right to a criminal defense and required states to provide a defense attorney to those who could not afford one.
The Constitution Project produced the following documentary on Gideon v. Wainwright and the state of indigent defense 50 years later, entitled “Defending Gideon.”
The U.S. spends less money on public defense, as a percentage per capita, than any country in Europe. And in recent years, certain states have faced more dire situations than others. The public defender crisis has been particularly troubling in southern states like Louisiana, where indigent defense is funded solely by traffic tickets. According to the Associated Press, more than 40% of Louisiana’s public defender offices ran deficits in 2013. This year, 10 judicial districts are expected to run out of money for indigent defense by June.
Advocates have filed lawsuits in several U.S. states, but in order to meet the constitutional requirements of Gideon v. Wainwright, a massive overhaul is needed. The hope is that in the case of states like New York, initial reforms will trigger a domino effect. New York’s landmark settlement in 2014 came after a damning report was published by the NYCLU, highlighting the severe ineptitude of the current system for indigent defendants.
The settlement resolved a seven-year class-action lawsuit brought by the NYCLU and the law firm Schulte Roth & Zabel. The responsibility for public defender funding will be moved to the state for the involved counties, and among other stipulations, the agreement requires:
- every defendant be represented by a lawyer at the first court appearance
- extensive training and supervision of public defenders
- new and enforceable standards for the number of cases one lawyer can balance
- power of oversight by the independent Office of Indigent Legal Services
- the state to set uniform guidelines for who is eligible for free legal representation
These apply only in the five counties involved in the lawsuit, but reform is needed statewide. Not surprisingly, the settlement led many more counties to pass resolutions asking the state to take over their indigent defense systems. New York Attorney General Eric T. Schneiderman said in a statement, “The approach outlined in this agreement can be a building block toward the kind of statewide reforms we need.”
Many states have pleaded for more funding, insisting it will actually save money by reducing wrongful convictions and prison overcrowding. While it’s difficult to know exactly how many wrongful convictions have resulted from the failing indigent defense system, former Attorney General Janet Reno said “in the end, a good lawyer is the best defense against wrongful conviction.” A Columbia University study found that in captial cases over a 23-year period, ineffective defense lawyering was the largest contributing factor to erroneous convictions and death sentences.
In Texas, an experimental program known as the Comal County Client Choice Project is attempting to address the quality of indigent defense, as well as the shortage of public defenders. Inspried by a 2010 report from the CATO Institute, the program allows defendants to use vouchers to hire an attorney of their choice. According to Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, the previous system offered judges a “perverse” incentive to appoint defense attorneys who kept the docket moving. With more power in the defendant’s hands, the hope is defense attorneys in this program will be accountable to their clients, rather than the courts.
One solution posed by the ABA Committee on Legal Aid and Indigent Defense is to reduce the number of cases entering the system. The committee claims reclassifying certain offenses could substantially reduce the burden on the justice system without jeopardizing public safety. Incidentally, rethinking sentencing for minor and non-violent offenses has also been posed as a way to combat the country’s grossly high incarceration rate. The two issues are inextricably linked. A report by the Justice Policy Institute asserts broken public defense systems are a major contributor to longer prison sentences and mass incarceration.
Mark Twain once said, “the law is a system that protects everybody who can afford a good lawyer.” Now, more than 100 years after his death, poor Americans are still battling for their constitutional right to a fair trial.