The Indigent Defense Crisis

Vanita Gupta of the Center for Justice and Ezekiel Edwards of the ACLU have a column at the Huffington Post documenting the ongoing crisis in our public defender system. On the 50th anniversary of the Supreme Court’s unanimous ruling in Gideon v Wainwright, the promise of giving the indigent a competent legal defense remains unfulfilled nearly everywhere.

Yet in the half-century since the decision, most states have fallen woefully short of the actual realization of what Justice Hugo L. Black called a “noble ideal.” For millions of indigent defendants, Gideon’s trumpet has remained silent. As Attorney General Holder has stated, “[t]he basic rights guaranteed under Gideon have yet to be realized. Millions of Americans still struggle to access the legal services that they need and deserve – and to which they are constitutionally entitled.”

The two primary causes of this crisis are too little funding and too many cases. Nationwide, indigent defense services are drastically underfunded, preventing states from providing effective assistance of counsel, not to mention investigators and experts, and compound the difficulty of attracting qualified public defenders. Some counties in Pennsylvania, for example, spend only $3 or less per capita on indigent defense. Some states and counties award flat fee contracts to the lowest bidders – i.e., lawyers who will handle the most cases at the lowest costs.

In addition, as Attorney General Eric Holder has observed, 75 percent of public defender offices have crushing caseloads that prevent basic case investigations. For instance, in 2007 the Bureau of Justice Statistics found that 64 percent of indigent prisoners detained following arrest did not meet their lawyers until after at least one week later. In Louisiana and Mississippi, people detained after arraignments can languish for weeks, even months, in legal limbo, before meeting with their attorney or having anyone investigate their case. Excessive caseloads are in part a consequence of over-criminalization of low-level, non-violent activity. According to the National Center for State Courts, approximately 80 percent of state cases are misdemeanors.

The daily injustices suffered nationwide by indigent defendants are staggering. Many are without lawyers at bail hearings, which leaves people incarcerated until trial because they cannot afford bail. Overburdened or poorly trained lawyers fail to consult with clients, investigate pending charges, file critical motions, or adequately explain plea offers and their consequences. Simply put, too often life-changing events occur in the legal system in the absence of competent counsel.

A 2009 report on the indigent defense system here in Michigan found that in the city of Detroit, the public defenders handle an average 2400 cases a year. The ABA standard for public defenders is 400. Justice isn’t even a hypothetical possibility under such circumstances.

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  • stever

    In addition to the chronic overloading and underfunding, the public-defender system has a built-in injustice: a prosecutor’s figure of merit is his conviction ratio. A public defender’s figure of merit is the number of cases he clears, regardless of outcome. Persuading the defendant to plead guilty for a shorter sentence boosts both numbers by clearing the case quickly. The last thing either lawyer wants to see is a smart-ass defendant who insists that he’s innocent, even if he is innocent.

  • D. C. Sessions

    Government is flat broke everywhere (and Detroit worse than others.) Wasting money on public defenders just takes it away from prosecutors and private prisons, where it’s desperately needed.

  • For instance, in 2007 the Bureau of Justice Statistics found that 64 percent of indigent prisoners detained following arrest did not meet their lawyers until after at least one week later.

    More than enough time to lose your job and have your life ruined.

  • D. C. Sessions

    Why all of a sudden is everything going into moderation?

    Anyone care to share a clue?

  • One solution to this problem might be to mandate that prosecutors and public defenders come from the same pool of people – i.e. there is just one job, call it ‘public attorney’ or the like, and one central agency, which assigns you on a taxi rank basis to either a prosecution or the defence of an indigent accused – and make whatever benchmark these people use to measure their success the same regardless of whether they’re acting as for the defence or the prosecution. Anyone competent to act as a defence lawyer ought to be able to do as good a job as a prosecutor and vice-versa, especially if they’re trained from the outset to do both.

    After all, any ethical legal system has an interest in convicting as many guilty people and acquitting as many falsely accused innocent people as possible, and such a system would force the balance back towards the latter.

    I’ve no idea how such a system could be insituted in the first place, though, short of an implausibly massive campaign of protest in favour of a weirdly specific reform. Probably more effective to focus on ending the War on Minority Drug Users in the short term.


    You fail to mention that the number of “indigent” is swelled past manageability because of the Mexican Nationals residing illegally in the country. Sit in any court room and it is an unending train of sex offenses, drunk driving charges, drunken fights, drunken domestics, shoplifting, vandalism, drugs, and every single one of them requires a free atty and a free interpreter.

    Enforce the immigration laws retro active to the last “amnesty” from Regan in 89, anchor babies and all and the indigent case loads will will no longer be crushing.

  • Infophile

    @7 …In states that border Mexico, at best. Once you get past the border states, into states where the fraction of undocumented immigrants is negligible (like, say, Michigan, mentioned in this article), the problem does not magically vanish. Care to venture another hypothesis which isn’t so easily falsified?

  • @7 Maria: I am an APD in an area with a healthy migrant worker population (many of them illegal immigrants), and that is patently untrue. Attorneys are expensive, and there are a number of working citizens who cannot afford them.

    The biggest factors that make PD workloads unmanageable are bad politicians (who criminalize everything with jail time), bad cops (who arrest and seek charges for everything), and bad prosecutors (who push forward with everything and don’t stand up to bad cops). Also lack of funding, but we wouldn’t need nearly so much funding if there weren’t so many cases to begin with. Illegal immigrants are drops in the overflowing bucket. State courts that handle misdemeanor cases are frequently zoos that offer only what I refer to as drive thru justice.

  • dingojack