Despite the progress since Gideon, there is still an urgent need for fundamental reform. To understand this need, we begin by examining the funding of indigent defense, including the methods and sources of funding. Later, we discuss the inextricable link between inadequate funding and the current crisis.
According to the latest available data on nationwide indigent defense expenditures, the 50 states and their counties spent approximately $3.5 billion on indigent defense in 2005. A current figure is unavailable, since there is no national source to maintain and report on indigent defense data for the 50 states. Although the United States Supreme Court has mandated that governments supply counsel to indigent defendants, as discussed in Chapter 1, it has never mandated how such systems should be created or funded. In implementing the right to counsel, both state and local governments are free to decide the type of indigent defense systems to employ and how to fund them. Although states must ensure that counsel is provided, some have chosen to place all or some of the burden on local governments.
Indigent Defense Models
State and local governments choose from three primary models for implementing the right to counsel: public defender, contract counsel, or private assigned counsel. In the public defender model, attorneys are hired to handle the bulk of cases requiring counsel in that jurisdiction. Public defender attorneys are full- or part-time salaried employees who frequently work together in an office with a director or administrator and support staff. Even when public defenders are the primary indigent defense providers in the jurisdiction, because some cases present a conflict of interest, public defenders cannot accept every case, and an alternative method for providing counsel must also exist. In the contract model, private attorneys are chosen by a jurisdiction—often after a bidding contest—and provide representation as provided by contractual terms. Most contracts are annual and require counsel to handle a certain number of cases or a particular type of case (e.g., misdemeanors), although some require counsel to handle all cases except where conflicts exist. Finally, in the assigned counsel model, private attorneys are appointed by the court from a formal or informal list of attorneys who accept cases for a fixed rate per hour or per case. This model is also typically used for cases when public defenders or contract counsel exist but cannot provide representation.
State and County Funding
Across the country, funding for these indigent defense models is provided by states, counties, or a combination of both. As the table below shows, the majority of states (28) now essentially fully fund indigent defense (i.e., provide more than 90% of the funding).
Table I: Sources of Indigent Defense Funding in the 50 States
Full State Funding
More Than 50% State Funding
More Than 50% County Funding
Only Pennsylvania and Utah still require their counties to fund all indigent defense expenses. Five states provide between 50% and 85% of the funds required for indigent defense, and 16 states shift the burden of over half the funding to the counties. As numerous statewide indigent defense studies have shown, when counties primarily fund indigent defense, there are certain to be inequities among the locally funded systems. Inevitably, urban counties have far more cases than rural counties and are often overburdened. At the same time, a rural county, with fewer resources, may be financially crippled by the need to fund the defense of a single serious homicide case.
Even populous counties sometimes struggle when faced with the cost of defending capital or other complex cases. In Travis County (Austin), Texas, costs have been rising and will continue to rise due to an increase in the number of cases, increased fees for court-appointed counsel, and a rise in the number of complex cases. In the past, the county normally had one or two death penalty or complex prosecutions a year, but it appears that it may receive as many as five such cases during 2008–2009. Consequently, during the next fiscal year, Travis County is likely to need $7 million for indigent defense, but the state’s last contribution to the county was only $427,700.
Fortunately, more states are beginning to recognize the importance of providing greater state funding. In 1986, 10 states contributed nothing toward indigent defense. In 1986, the 50 states combined contributed 38% of the total funding of indigent defense, while the counties contributed 62%. In 2005, the states contributed just over 50% of overall funding. In several states, the comparative share of state funding has increased dramatically. For instance, between 1986 and 2005, Arkansas went from contributing nothing toward indigent defense to contributing 91% of the overall costs; Iowa went from contributing less then three percent to full state funding; and Minnesota went from 11% to 93% state funding.
During the past several years, more states have begun to relieve the counties of their funding burden. This has occurred along with the creation of more unified statewide systems or oversight bodies, which is further discussed in Chapter 4. In 2002, Montana spent only slightly more than the counties to fund indigent defense. In 2005, following a statewide study and class-action lawsuit, Montana created a new statewide system and accepted full funding of the new system, substantially increasing state expenditures. In 2006, including supplemental expenditures, state spending again increased significantly. In Georgia, following the efforts of a study commission and statewide study of indigent defense, the state created a statewide system and in 2005, compared with 2002, more than doubled its share of funding. However, this increase in state funding did not totally relieve the counties. While the state took over the funding of adult felonies, criminal appeals, and juvenile delinquency cases, the counties still must fund all misdemeanor and ordinance violation cases. Between 2002 and 2005, the counties’ expenditures increased by 28%.
In Texas, the Fair Defense Act of 2001 created the Texas Task Force on Indigent Defense to help the counties improve their local indigent defense systems and provide state oversight. Through the Task Force, state funds are awarded to counties whose indigent defense programs meet certain criteria. Since 2002, following the creation of the Task Force, Texas has nearly doubled its share of indigent defense funding.
In Nevada, an effort is underway by the Nevada Association of Counties (NACO), the Nevada Supreme Court’s Indigent Defense Commission, and others to establish a fully state-funded indigent defense system. On behalf of NACO, a bill has been introduced in the 2009 legislative session that seeks to allow counties with populations over 100,000 (i.e., Clark and Washoe counties) to use the State Public Defender’s Office and require the state to fund all indigent defense expenses. Currently, only the smaller Nevada counties may use the State Public Defender’s Office, and they must pay 80% of the cost of doing so or otherwise fully fund their own local system. In 2005, Nevada contributed less than three percent of the overall cost of indigent defense in the state.
General and Special Fund Revenues
In the competition for state funds, indigent defense is frequently at the back of the line. As a result, in some states indigent defense is not entirely supported by state general funds. Special funds and other revenue sources are unpredictable and more apt to fall short of indigent defense needs. In recent years, many states that have increased their indigent defense funding have relied substantially on these latter funding mechanisms. Regrettably, this approach often undermines the goal of adequate indigent defense funding.
In Georgia, for example, the legislature voted in 2004 to fund its new statewide public defender system through additional fees and surcharges, including additional fees in civil and criminal cases, surcharges on bail bonds, and an application fee for indigent defendants. Unfortunately, as later discussed in this chapter, collection of these special funds has not been sufficient to cover Georgia’s rising costs. Moreover, not all of the funds collected have been directed to indigent defense. Although the fund collected $45.5 million in fiscal year 2008, indigent defense is receiving only $40.4 million in fiscal year 2009, with the remaining $5 million being returned to Georgia’s general fund.
In Kentucky, 15% of indigent defense funding is derived from non-general fund sources, including a portion of court costs imposed in all criminal cases and a portion of a fee in DUI cases. Although these revenue sources were created to help defray the cost of indigent defense, the legislature has in the past used the existence of these revenues to justify cutting general fund support for indigent defense. In other words, alternative funding mechanisms run the risk of being used to supplant rather than supplement general funds. The Kentucky approach, moreover, has failed to keep the state’s indigent defense system from serious funding shortfalls.
Similar problems exist in states that rely primarily on counties to fund indigent defense as well. In Louisiana, the state historically has contributed less than 20% of indigent defense funding, and many local judicial districts have faced funding crises. Under new legislation, 2008 state funding was increased to $28 million, up from $4.3 million in 2005. In addition, state law requires the judicial districts to establish an indigent defender fund that is primarily funded by a $35 fee imposed on all persons convicted of state or local violations (except parking tickets), a fee that fluctuates monthly. While Hurricane Katrina depleted the local parishes’ indigent defender accounts, studies have shown that indigent defense in Louisiana was facing serious funding shortages even before the natural catastrophe.
In New York, where the state contributes less than 40% of indigent defense funding, indigent defense has been described as “a patchwork composite of multiple plans that provides inequitable services across the state to persons who are unable to afford counsel” and “in a serious state of crisis.” Nearly one-half of the state funding comes from non-general-fund revenue sources.
As the cost of indigent defense continues to increase nationwide, funding shortages are guaranteed to worsen, given the country’s economic condition at the beginning of 2009. Even before today’s economic crisis, many indigent defense systems across the country were already facing serious budget shortfalls and cutbacks. Between 2002 and 2005, when adjusted for inflation, many states that fully fund their indigent defense systems actually decreased their level of financial support, including Connecticut, Hawaii, Missouri, New Mexico, Oregon, and Wisconsin. Now, 37 states are facing mid-year budget shortfalls for fiscal year 2009, and 22 of these states fully fund their indigent defense systems. Obviously, when states reduce financial support for public defense, which is already underfunded, there is a substantially greater risk that accused persons will not receive adequate legal representation and that wrongful convictions will occur.
A number of states can be cited to illustrate the current funding emergency in indigent defense. For example, in 2008, Maryland was faced with the need to reduce its budget by $432 million, and as a result, the public defender agency lost $400,000 in support staff salaries. Also, as of October 2008, the Public Defender announced that it would cease to pay for private court-appointed attorneys in conflict cases. As a consequence, the Chief Judge of Maryland’s highest court has ordered the counties to pay the cost of attorneys who must be hired when the public defender has a conflict. At least one county has stated that it does not have the funds to pay those bills.
Similarly, budget cuts in Florida are hitting hard in a number of counties. In Orange-Osceola County, where the criminal courts are among the busiest in the state, both prosecutor and public defender offices are facing combined budget reductions of $3 million. The result is that the public defender’s office has had to lay off 10 attorneys and has suffered a loss of 40 positions. In addition, some costs are being transferred to defendants who will be ordered, if convicted, to pay special fees of $50 in misdemeanor cases and $200 in felony cases. In Miami (Dade County), lack of funding has led to a lawsuit challenging excessive public defender caseloads. Other public defender offices, such as those in Broward and Palm Beach Counties, are close to refusing cases.
In Kentucky, the legislature in 2008 cut the indigent defense budget by 6.4%, totaling $2.3 million. As a result, the Department of Public Advocacy announced that it will begin to refuse several categories of cases, including conflict of interest cases, some misdemeanors, and probation and parole violation cases. In Minnesota, the legislature cut the Board of Public Defense’s FY 2009 budget by $4 million, forcing the layoff of 13% of public defender staff (23 public defenders). This is the largest staff reduction since the state assumed full indigent defense funding in 1995. The layoff is expected to cause public defender caseloads to go from bad (approximately 450 felony cases per attorney per year) to worse (approximately 550 felony cases per attorney per year). Similarly, due to budget cuts, the Georgia Public Defender Standards Council in 2007 owed hundreds of thousands of dollars to attorneys representing indigent defendants in capital cases and was forced to lay off 41 employees. In 2008, it closed a major conflict defender office as a cost-cutting measure.
In the battle for adequate funding, indigent defense faces tough competition for resources, especially in comparison to prosecutors. Even conceding that prosecutors consider some cases that are never charged and that some cases are represented by retained counsel, financial support of indigent defense typically lags well behind that provided for prosecutors. The ABA has urged “parity between defense counsel and the prosecution with respect to resources,” but this goal is not being achieved. The inequities between prosecution and defense can take several forms, including disparity in the amount of funds, sources of funding, in-kind resources, staffing, and salaries.
In Tennessee, a one-of-a-kind study was conducted that illustrates the problem. Using state budget information, the study compared the overall resources of prosecution and defense by examining the funding of all agencies related to the prosecution and defense functions. The study reviewed both state and non-state funds and concluded that total prosecution funding that could be attributed to indigent cases amounted to between $130 and $139 million for FY 2005. In contrast, indigent defense funding amounted to $56.4 million, a stunning difference of over $73 million. Tennessee is not alone in this inequity. In California, where the counties fund indigent defense at the trial level, a comparison of FY 2006–07 county indigent defense and prosecution budgets revealed that indigent defense was “under-funded statewide by at least 300 million dollars.” Moreover, between FY 2003–04 and FY 2006–07, the statewide disparity in indigent defense and prosecution funding increased by over 20%.
In addition to disparity in the overall amount of funding, differences also exist in funding sources and in-kind resources provided to the prosecution and indigent defense. Beyond general funding, the prosecution frequently receives special federal, state, and/or local funding for particular prosecution programs (e.g., domestic violence prosecutions, bad checks, highway safety, and drug enforcement programs), while the defense is fortunate if it receives small amounts of grant funding. Furthermore, the prosecution has the benefit of accessing many federal, state, and local in-kind resources that cannot be quantified, including the resources of law enforcement, crime labs, special investigators, and expert witnesses. In contrast, indigent defense must either fight for special funding in their budgets to allow for these resources or seek prior approval from the court in order to access them, which is often denied.
The overall disparity in funding frequently means that there are very real inequities between prosecution and defense programs related to staffing levels and compensation. For example, in Cumberland County, New Jersey, the prosecutor’s office has twice the number of attorney positions and over seven times the number of investigators handling criminal cases as the public defender’s office, even though public defenders handle approximately 90% of the county’s criminal cases. In Harris County, Texas, the budget for the District Attorney’s Office is over twice the amount available for indigent defense and includes 30 investigator positions compared with no investigators for the contract defenders. In Saratoga County, New York, the District Attorney’s Office has five more full-time and two more part-time attorney positions than the Public Defender’s Office, partly due to state grant funding for cases such as domestic violence, sex crimes, car theft, and DWI cases.
In New Orleans, prosecutors outnumber public defenders nearly three to one (90 to 32). The former Interim Chief Public Defender has stated that the disparity is likely to grow as federal grant funding of $1.7 million of federal funds awarded in the wake of Katrina is due to expire in 2009, leading to a lay-off of one-third of the program’s attorneys. The disparity is not surprising considering that the City of New Orleans provided nearly $5 million in funding to the District Attorney’s Office in 2008 but nothing to the Public Defender’s Office, although the City Council has agreed to consider a proposal to provide public defender funding in the future.
Across the country, because of inadequate compensation, public defense programs find it difficult to attract and retain experienced attorneys. With so many jurisdictions currently experiencing budget woes, compensation is not likely to improve any time soon. Sometimes, prosecutors are also poorly paid. Both public defender and prosecution offices lose experienced staff attorneys to the federal system, which provides far better compensation.
Also, throughout the country, public defender salaries are often significantly below those of prosecutors. For instance, when salaries were frozen in Virginia in 2006, over 27% of the attorneys in the public defender system resigned, and many turned to higher paying jobs at prosecutor offices or to private law practice. Although entry-level public defender salaries have risen since that time, because prosecution offices receive supplemental funding from Virginia municipalities—from $6000 to $20,000 per attorney—public defenders are still paid less than their counterparts. In Westchester County, New York, where county funding of indigent defense, as of 2006, was several million dollars below prosecution funding—not including over $6 million in grant funding for prosecution—district attorneys’ salaries were approximately $6000 to $21,000 higher than public defenders’ salaries. In Missouri, the salaries of public defender trial attorneys in 2005 ranged between approximately $34,000 and $54,000. In contrast, prosecutors’ salaries were reported to range from $40,000 to up to $100,000 or more. Public defender salaries are so low that some attorneys are forced to work second jobs, and the cumulative turnover of public defenders between 2001 and 2005 was an astounding 100%! Although Missouri’s assistant public defenders have since received a four percent salary increase, most have large law school debts and are still struggling. As one public defender put it, “[i]f you want to raise a family, buy a house and a car, that’s not going to happen.”
Similarly, compensation of assigned counsel is often far from adequate. Attorneys in private practice across the country routinely bill between $178 and $265 per hour for their work, a sum that is necessary in part to cover overhead expenses. When the federal government retains private attorneys to provide representation in civil matters, the lawyers are compensated at similar rates. In contrast, when an indigent person is accused of a non-capital felony offense and faces a loss of liberty, the lawyer assigned to defend that person is rarely paid over $90 an hour, and more often, the compensation is between $50 and $65 an hour. In several states, including Oklahoma, South Carolina, and Tennessee, attorneys receive as little as $40 an hour for out-of-court work in such cases. In Oregon, attorneys receive $40 an hour in non-capital felony cases even for trials and other work performed in court. With few exceptions, assigned counsel are not given an additional payment to cover overhead expenses. Moreover, states frequently limit the amount assigned counsel can be paid for any single case by setting maximum compensation levels. In order to exceed the maximum compensation level, an attorney must seek approval from the court—approval that, in fact, may be denied even after the work has been performed. In Mississippi, although attorneys are compensated for overhead expenses, the statutory limit is $1000 for work performed in a non-capital felony case. This cap most likely has a chilling effect on the right to counsel by providing a disincentive for attorneys to perform work beyond the $1000 level, resulting in a conflict of interest between the attorney and client.
C. The Burden of Too Much Work
Because of inadequate funding, indigent defense attorneys in much of the United States struggle with the burden of overwhelming caseloads. As a consequence, even the best-intentioned lawyers cannot render competent and effective defense services to all of their clients. In this section, we discuss not only the presence of excessive caseloads, which is a problem virtually everywhere in public defense throughout the United States, but we also examine a variety of policy decisions and other factors that contribute to this excess.
When there are too many cases, lawyers are forced to choose among their clients, spending their time in court handling emergencies and other matters that cannot be postponed. Thus, they are prevented from performing such essential tasks as conducting client interviews, performing legal research, drafting various motions, requesting investigative or expert services, interviewing defense witnesses, and otherwise preparing for pretrial hearings, trials, and sentencing hearings. Eventually, working under such conditions on a daily basis undermines attorney morale and leads to turnover, which in turn, contributes to excessive caseloads for the remaining defenders and increases the likelihood that a new, inexperienced attorney will be assigned to handle at least part of the caseload.
As explained in Chapter 1, professional rules of conduct governing lawyers require that an attorney’s workload be controlled to allow for competent representation in each case. In addition, the commentary to several of the Committee’s recommendations in Chapter 5 pertains to public defense workloads and adherence to ethical standards. Because various rules pertaining to excessive caseloads are discussed elsewhere, we emphasize here only two additional observations that we believe to be especially important.
First, both the NLADA and the ABA have addressed the caseload issue in unambiguous language. NLADA guidelines require that, prior to accepting an appointment, defense attorneys ensure they have adequate time available to provide quality representation; further, should this change during the course of a case, they should seek to withdraw as counsel. The ABA has warned for years against excessive caseloads for indigent defenders, and its standards seek to guard against them. Moreover, the 2006 ethics opinion of the ABA Standing Committee on Ethics and Professional Responsibility, discussed in Chapter 1, emphasizes that the profession’s rules are fully applicable to those who represent the indigent accused. Like the NLADA guidelines and the ABA’s standards, the ethics opinion requires defense attorneys not to accept too many cases and to seek court approval to withdraw from cases when the workload is such that they cannot provide adequate representation. However, if defenders ask to withdraw or request that they not be appointed to additional cases, judges are not bound to heed their request and, if relief is not granted, the rules of professional conduct require that attorneys continue to provide representation.
Second, only one study has ever suggested national maximum caseload numbers for use by defenders. In 1973, the National Advisory Commission (NAC) on Criminal Justice Standards and Goals, funded by the federal government, issued a series of reports. In its report on the Courts, the commission recommended the following maximum annual caseload for a public defender office, i.e., on average, the lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals. Because the NAC standards are 35 years old and were never empirically based, they should be viewed with considerable caution. In fact, the commentary that accompanied the NAC caseload numbers contained numerous caveats about their use, which have rarely been cited. For example, the commission acknowledged the “dangers of proposing any national guidelines.” Further, while the commentary conceded that its numbers could be used to measure a single attorney’s caseload, its report also contained a warning: “It should be emphasized that the standard [referring to its numbers] sets a caseload for a public defender’s office and not necessarily for each individual attorney in that office.” Moreover, since the NAC’s report was published, the practice of criminal and juvenile law has become far more complicated and time-consuming, as discussed in Chapter 1 and later in this chapter.
Few jurisdictions or programs today have enforceable, maximum caseload standards, either for individual lawyers or for a defense program. Even those that have caseload standards, often determined through weighted caseload studies, frequently exceed them. Not only do the laws in many jurisdictions impose on defense programs the duty to accept indigent cases when appointed by the courts, but also, there often are substantial political pressures on defenders not to refuse cases due to overload. The result is that indigent defendants frequently are represented by defense attorneys who are so overburdened with cases that the attorneys are violating their professional obligations as members of the bar and are constantly risking their clients’ rights to effective representation.
During 2003, commemorating the 40th anniversary of the Gideon decision, the ABA Standing Committee on Legal Aid and Indigent Defendants held hearings at four different locations across the country to document indigent defense problems, including excessive caseloads. Numerous witnesses testified, revealing the presence of excessive caseloads in many of the states in which they resided, including Illinois, Louisiana, Maryland, Montana, Nebraska, New York, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington. The examples outlined in the paragraphs below, all of which are even more recent than the testimony of witnesses at the ABA hearings, provide a snapshot of the dimension of the caseload problem, but they are by no means the only places where the caseloads are out of control.
In January 2008, the Nevada Supreme Court ordered the two largest counties in the state to perform weighted caseload studies after finding that, “by any reasonable standard, there is currently a crisis in the size of the caseloads for public defenders in Clark County and Washoe County.” In Clark County, in 2006, the average public defender’s caseload was 364 felony and gross misdemeanor cases; in Washoe County, the average caseload was 327 felony and gross misdemeanor cases.
During May 2008, the Knox County Public Defender in Tennessee sought permission from the court to refuse misdemeanor cases due to an overwhelming caseload in the office. One attorney reported a pending caseload of 240 open cases, 144 of which were felonies, which is close to the NAC standard of 150 felonies for an entire year. Another attorney reported that between January and February 2008, she represented 151 clients, which averaged approximately 14 people per day. In 2006, six misdemeanor attorneys handled over 10,000 cases, averaging just less than one hour per case.
Recently, in Kentucky, despite the caseload of the Department of Public Advocacy (DPA) (the state’s public defender) rising by an average of eight percent per year, the legislature in 2008 indicated that it would cut the agency’s budget by $1 million during the next fiscal year. During the summer of 2008, DPA responded that, since the caseloads of its public defenders already exceeded NAC standards by 40%, affording attorneys an average of less than four hours per case, DPA would have to reduce its services.
In Florida, where litigation regarding the right of public defenders to refuse cases is pending on appeal, average public defender caseloads in Miami (Dade County) have risen in the past three years from 367 to nearly 500 felonies and from 1380 to 2225 misdemeanors. Despite these increases, the public defender office’s budget in the past two years has been cut by 12.6%.
High caseloads often force attorneys to continue cases. Worse yet, they can lead to mistakes that seriously affect a client’s right to counsel and liberty. In Miami, for instance, one public defender was so busy that he did not have time to check the calculation of a minimum sentence for a client charged with theft. Instead, the defender accepted the prosecutor’s calculation of 2.6 years imprisonment. He and his client were resigned to this sentence when the prosecutor discovered an error. The client’s minimum sentence was in fact only one year. Another Miami public defender handles 50 serious felony cases at a time. On a day when she had 13 of these cases set for trial, she received a plea offer of one year for a client but did not have time to discuss it with him and to communicate in a timely fashion with the prosecutor. With the case unresolved, the prosecutor rescinded the plea offer, and the client ultimately pled guilty and was sentenced to five years.
Excessive caseloads within a defender program also increase the likelihood that inexperienced attorneys will be forced to handle serious cases for which they are not fully qualified. In California, a statewide survey of judges and indigent defense attorneys conducted for the California Commission on the Fair Administration of Justice found “a statistically significant correlation between having an excessive caseload and using attorneys with less than [three] years [of] experience” to handle serious felony and “three-strikes” cases.
In Missouri, the Public Defender Commission found in 2005 that “excessive caseloads can and do prevent Missouri State Public Defenders from fulfilling the statutory requirements [for representation] and their ethical obligations and responsibilities as lawyers.” The State Public Defender Deputy Director stated that 2004 caseloads required trial public defenders “‘to dispose of a case every 6.6 hours of every working day.’” He further described the situation: “‘The present M.A.S.H. style operating procedure requires public defenders to divvy effective legal assistance to a narrowing group of clients,’” remarking that the situation forces public defenders “‘to choose among clients as to who will receive effective legal assistance….’” Since 2006, some cases have been assigned to private attorneys to ease public defender workloads, but this has not alleviated the problem. In October 2008, public defender offices in four counties began to refuse certain categories of cases. In one of those counties, public defenders have been averaging 395 cases a year. The State Public Defender maximum caseload standard, which was fixed some years ago, is 235. In November 2008, the State Public Defender Director said of the situation, “[w]e keep diluting the representation that the indigent person is able to get, and mistakes will be made, and are being made.”
Also, in November 2008, Hawaii’s Deputy Public Defender expressed concern about the workload of Hawaii’s public defenders: “I think the quality of the representation has suffered because we have to divide our time…. It’s hard to file motions, do legal research and do what needs to be done.” Hawaii’s Public Defender noted that inadequate staffing and increasing caseloads will ultimately require the office to refuse cases.
“Tough on Crime” Policies
For some years, there has been a national movement in the United States to get “tough on crime.” For more than a decade, state legislatures have joined the federal government in creating many more mandatory sentencing and “three-strikes” laws that have greatly increased the stakes for the accused in criminal cases. Championing a reduction in criminal sanctions, like championing indigent defense, is a risky move for most politicians. As Ohio Governor Ted Strickland described it, “[t]here isn’t a person in public office that’s not sensitive to the accusation of being soft on crime.”
The effect of these laws can be seen in today’s record high jail and prison population. The PEW Center on the States recently reported that the United States now incarcerates far more people than any other country in the world. At the start of 2008, our country had over 2.3 million people locked up, followed only by China with 1.5 million persons behind bars. America incarcerates more people now than at any other time in our history; one person out of every 100 people is in jail or prison. This growth does not correspond to an equivalent increase in crime. In fact, crime has significantly decreased in the past 10 years. For instance, between 1996 and 2005, violent crime in this country decreased by 26% and property crime decreased by 14%. Rather, the growth corresponds to “a wave of policy choices that are sending more lawbreakers to prison and . . . keeping them there longer.” However, a large number of the persons locked up are there for violating terms of their release. For instance, over one-third of prison admissions in 2005 were due to violations of parole. Additionally, half of the population in the nation’s jails is attributable to violations of probation. Often, such violations are not for committing new offenses but for violating other terms of release, such as failing a drug test or missing a scheduled appointment with a probation or parole officer. Overall, more than half of the persons released from prison return within three years for committing a new crime or violating the terms of their release.
As a result of the “tough on crime” policy decisions, criminal cases have become more time-consuming and costly to defend. The greater the potential consequences of a conviction, the more time and effort a criminal defense attorney needs to expend to avoid a conviction or to mitigate its consequences. A recent empirical workload study of the Colorado State Public Defender found a significant increase in just the past six years in the time it takes public defenders to handle their caseloads due to a variety of factors, such as the creation of new crimes, enhanced penalties, and additional collateral consequences applicable upon conviction.
In addition to harsher criminal sanctions, defendants today face many more civil sanctions, or collateral consequences, as a result of criminal convictions. Collateral consequences can result in more severe sanctions for a defendant than the actual criminal sentence, including the loss of legal immigration status, public benefits, housing, a driver’s license, and employment. Like tougher criminal sentencing laws, the emergence of collateral consequences reflects a policy decision by legislators that similarly raises the stakes in many criminal cases. State and federal laws that create these civil sanctions not only impact criminal defendants, but they also make it essential for indigent defense attorneys to attend training programs and to conduct additional legal research so that they can appropriately advise clients of the consequences of a criminal conviction. Moreover, when harsh collateral consequences will result from a guilty plea and conviction, a defendant has a strong incentive to go to trial.
Although most states do not require defense counsel as a matter of law to advise a client of the potential collateral consequences prior to entering a guilty plea, ABA standards applicable to defenders state that they are ethically bound to do so. Additionally, ABA standards affirm that trial judges have an obligation to ensure that defendants have been advised of collateral consequences when accepting a guilty plea. Recently, several Nevada Supreme Court justices dissented from an order that adopted indigent defense performance standards because they failed to require counsel to advise clients of collateral consequences prior to pleading guilty.
Criminalization of Minor Offenses
Although national crime rates have decreased and fewer major crimes are being committed, indigent defense providers remain burdened with excessive caseloads consisting of all kinds of cases, as discussed earlier, including countless minor, petty offense cases. Felonies and violent felonies in particular have decreased dramatically in New York City, for example, but there has not been a concomitant decrease in indigent defense caseloads due to the proliferation of violation and low-level misdemeanor charges. It is now common in New York City to bring people to court for violations of the health code, riding a bike on a sidewalk, and drinking beer in public. As one scholar has noted, “never before have so many been arrested for so little.”
New York is not alone in this regard. In Georgia, offenses that are classified as civil infractions in most states, such as speeding, following too closely, and other moving violations are misdemeanors that carry the potential of up to 12 months in jail. With this classification comes the high cost of providing representation to indigent persons charged with these offenses, unless any potential of jail time is removed. In Missouri, where the State Public Defender is currently seeking to refuse appointments in certain categories of cases, some persons are asking whether charging some low-level offenses as crimes is worth the cost of defending them. For instance, in one case, a public defender represented a high school student for yelling profanities at a teacher. The State Public Defender’s Deputy Director asked, “[d]o the taxpayers really need to pay for that kind of defense?”
In Massachusetts, a commission created by the legislature quantified the costs of categorizing low-level offenses as crimes rather than as civil infractions. Over a four-year period, the state paid for attorneys to represent indigent defendants in almost 59,000 cases for trespassing, writing a bad check, disturbing the peace, shoplifting, and operating a motor vehicle with a suspended registration or license. Very few of the offenders were incarcerated. Had these cases been dealt with as civil infractions with monetary and administrative penalties, the state would have saved approximately $8.5 million in representation costs alone.
This trend toward criminalizing bad or reckless behavior not only increases indigent defense caseloads and costs, but it also diminishes public safety by “creating a permanent underclass” of persons with a criminal record that can handicap them for years in various ways. The former chair of the Criminal Justice Section of the ABA, a district attorney, characterized the problem as creating “a modern day scarlet letter.”
Expansion of the Right to Counsel
Indigent defense providers across the country are handling more types of cases today than at any other time since Gideon. First, with expansion of the right to counsel under Supreme Court jurisprudence, as discussed in Chapter 1, there has been a concurrent increase in the number of cases requiring the appointment of indigent defense counsel. Since 2002, for a person to be incarcerated for violating the terms of a suspended or probated sentence, counsel must have been provided for the underlying offense even if the defendant was not facing incarceration at the time of conviction. Second, states now provide counsel to indigent persons in certain non-criminal cases. The number and cost of these cases can be quite significant and are usually considered part of the state’s total indigent defense caseload and expenditures. In Virginia, for instance, court-appointed counsel are provided in dependency and termination of parental rights cases and in cases requiring the appointment of a guardian ad litem (e.g., for a minor). In FY 2006, these two case types accounted for 27% of the total cases handled by assigned counsel in Virginia. In Massachusetts, defense lawyers are provided in numerous non-criminal cases, including dependency, guardian ad litem, and mental health (e.g., civil commitment) cases. Similar to Virginia, in FY 2003, non-criminal cases accounted for 27% of the total number of assigned counsel cases in Massachusetts.
Deinstitutionalization Without Community Support
More than ever before, indigent defense attorneys are representing clients with serious mental illnesses. In recent years, there has been a drastic reduction in the number of beds available in mental health hospitals, accompanied by deinstitutionalizing persons with mental problems, but without significant growth in providing community support for the mentally ill. At the same time, the criminalization of minor offenses has increased the number of indigent defendants who are suffering from mental illness. Moreover, mentally ill defendants are more likely to be incarcerated for minor offenses than are persons who are not mentally ill. In fact, more mentally ill people are in jails or prisons today than are in mental hospitals.
While the costs of incarcerating the mentally ill are apparent and well-documented, the additional expense of providing an adequate defense for these persons has not been quantified. Mentally ill clients require more of a defender’s time and often require additional public defense expenditures. For example, attorneys must spend extra time and effort to communicate with their clients in order to gather necessary information and ensure that their clients understand the legal concepts and case proceedings. Defense lawyers must also determine if clients need to be evaluated for competency to stand trial, whether the facts justify an insanity defense, or both. If either is warranted, more time and resources are required to obtain expert witnesses and litigate the issues. Also, attorneys frequently need to devote time to finding treatment opportunities for their clients. And when mentally ill clients are incarcerated, jail conditions often cause them to deteriorate, making representation even more difficult and time-consuming.
In Kentucky, where over half the people incarcerated are mentally ill or addicted to drugs, the Department of Public Advocacy, Kentucky’s public defender program, launched a pilot program that used social workers in four counties to divert eligible defendants into substance abuse and mental health programs. The social worker program reduced the costs of incarceration by $1.3 million dollars, covering its cost and saving the state $300,000, while also reducing recidivism rates. Nevertheless, Kentucky’s governor recommended against the program’s continued funding in his proposed budget.
Complexity of the Law
With the emergence of science and technology and new criminal laws, many cases have become more complex, requiring specialized training and greater time to defend. Consider, for instance, the use of DNA and other forensic evidence, computer- or internet-based crimes, and the creation of sexually violent predator laws. In Chapter 1, we discussed the statement on workload of the American Council of Chief Defenders, which explains that such complex cases are a significant burden on a defender’s time, requiring not only specialized knowledge but often also the review of thousands of pages of discovery and the use of experts.
Another development that affects public defender workloads is the growth of specialty courts, which have been established across the country to handle various types of cases (e.g., drug and domestic violence cases) separately from other criminal prosecutions. While the goals of such specialty courts are laudable and may include heightened attention to and more sentencing alternatives in particular cases, their creation places an additional burden on public defense. Typically, the indigent defense agency does not receive additional funding when a specialty court is created, but it is nonetheless expected to staff the court with attorneys who are often required to attend many more court appearances than in non-specialty courts. Similarly, specialty courts may create an unfunded mandate for the prosecution and courts as well.
Lack of Open Discovery
Prosecution discovery policies are another area of decision-making that has a direct bearing on public defense workloads and indigent defense costs. Discovery refers to the evidence held by the state that is relevant to the case against the defendant, including witness statements, investigation reports, and physical evidence. When prosecutors provide to the defense all of the evidence in their possession, they practice open-file discovery. ABA criminal justice standards recommend the use of pretrial procedures that “promote a fair and expeditious disposition of the charges,” which means providing defendants “with sufficient information to make an informed plea,” to allow for thorough trial preparation and “minimize surprise at trial.” Moreover, the discovery should be provided “as early as practicable in the process” to allow for sufficient trial preparation. However, since prosecutors are constitutionally required only to turn over evidence that may be favorable to the accused, many prosecution offices do not adhere to open file discovery practices. For the most part, the degree to which discovery material must be turned over to the defense by prosecutors, and when they do so, is determined by state laws and procedural rules. But even when a state does not provide for open file discovery, prosecutors are not normally precluded from adopting more generous discovery policies.
Open-file discovery not only promotes the prompt dispositions of cases; it can also significantly reduce indigent defense workloads and costs. In order to represent clients adequately and determine whether a defense is available, defense attorneys must have a complete understanding of the prosecution’s case against the client. If the defense does not obtain from the prosecution the relevant police reports and witness statements, the information must be obtained elsewhere. Defense lawyers normally can do so in various ways, all of which necessitate additional time, resources, and costs, not only for public defense, but also for the courts and prosecution. Absent knowledge of the state’s evidence, defense attorneys are likely to need to conduct a more thorough investigation than might otherwise have been necessary and are more apt to ask for preliminary hearings in order to learn about the case and obtain witness statements. Attorneys may file and litigate motions that may have otherwise been unnecessary had they been supplied with the facts through open file discovery. They may also delay or refuse plea negotiations and perhaps even conduct trials that could have been avoided. Worst of all, when defense attorneys are unaware of all of the evidence against their clients, innocent clients are more likely to be convicted because of the inability of their attorneys to prepare a proper defense.
To illustrate the foregoing, consider New York where defense attorneys rarely receive adequate discovery, and even more rarely, receive it in a timely manner. A public defender in Wayne County complained of last-minute discovery being provided by the state and noted that “[t]rue open file discovery would save [everyone] a lot of time, money and effort” through earlier plea agreements and less litigation overall. In addition, prosecutors in New York often require defendants to waive their right to a preliminary hearing as a prerequisite to receiving discovery or withhold evidence to force a plea agreement, thereby undermining the adversarial system. In Virginia, attorneys report receiving discovery at 5:00 p.m. the night before trial or even the day of trial, requiring last-minute continuances, thus resulting in added time and costs not only to the defense but also to the court, sheriffs, witnesses, and jurors. In California, according to a statewide survey conducted for the California Commission on the Fair Administration of Justice, an “overwhelming majority” of experienced criminal defense attorneys and indigent defense providers reported a failure by the prosecution to provide exculpatory evidence and a delay in providing requested discovery material.
Lack of open and timely discovery also can result in defense lawyers learning after substantial pretrial preparation that they have a conflict of interest. In a case in New York, the defendant had been incarcerated nine months when the attorney had to withdraw due to a conflict discovered on the day of trial. Only then did the attorney learn that he had previously represented a key prosecution witness. Consequently, defendant’s newly appointed counsel had to repeat and be paid for much of the same work performed by the defendant’s original lawyer. Continuances were required as well, resulting in the expenditure of additional time and resources for all involved in the court proceeding.
Finally, prosecutors have sometimes been cited for withholding exculpatory evidence, which has resulted in cases being retried and in compensation being awarded to persons wrongfully convicted. In North Carolina, for example, a man spent several years on death row because two prosecutors withheld evidence that was eventually used to exonerate him. In such cases, not only does the retrial cost the state additional funds for indigent defense representation, but the state also pays for the appeal of the original wrongful conviction. In Texas, the state has paid $8.6 million in compensation in 45 wrongful-conviction cases since 2001, and nearly half (22) of these involved prosecutors withholding evidence from the defense.
D. Other Impediments to Competent and Effective Defense Services
Throughout the country, nearly every state and local indigent defense system faces various challenges that impede the delivery of competent and effective defense services for the indigent. This section describes and documents these many other threats or roadblocks to fairly and fully implementing the right to counsel.
Lack of Independence
Both the ABA and the NLADA have long recognized the importance of professional and political independence of indigent defense providers. When the defense function lacks such independence, the integrity of the indigent defense system is compromised. As discussed in Chapter 5, to ensure that the defense function is protected, the establishment of an independent policy board to provide oversight is strongly recommended. Such boards now exist in some states, but there still are parts of the country where indigent defense is plagued by the oversight and influence of governmental funding sources and the courts. This influence, which may be rooted in a desire to control costs, assign cases to particular attorneys as a result of patronage, or a preference for certain attorneys known to resolve cases without litigation, often runs contrary to the duties of the defense provider and the interests of defendants. In short, the lack of independence of the defense function threatens the right to counsel.
Probably the greatest risk to independence of the defense function is the pressure defenders receive from their funding sources. In New York, for instance, where the counties are primarily responsible for funding their own indigent defense programs, some county chief public defenders have publicly testified regarding the political pressure they received. The former Essex County Public Defender described the difficulty he had in obtaining the county’s permission to hire a full-time assistant public defender. He was told by one county supervisor that “these defendants don’t need to have Johnny Cochran….” After obtaining approval to hire the assistant, the former public defender was then pressured to fire him because the local judges did not like the way he practiced. This public defender was also told by a county supervisor that he “should join the District Attorney in his effort to keep the streets of Essex County safe.” In Onondaga County, the Director of the Hiscock Legal Aid Society has provided a powerful illustration of political pressure. Testifying before a legislative committee, she was questioned at length about specific defense policies and practices of her office, including not pleading cases at arraignment, filing defense motions, and sending demands to the prosecutor for discovery. The program later lost a contract to handle city court cases.
Nebraska and its 93 counties, each with its own indigent defense system, has long suffered from similar problems. In 2004, a committee of the Nebraska Minority and Justice Task Force (established in 1999 by the Nebraska State Bar Association and the Nebraska Supreme Court) reviewed the counties’ systems and noted a number of areas that threaten the independence of the defense function. First, 23 of Nebraska’s counties, like the judicial districts of Florida and Tennessee, publicly elect the heads of their public defender offices. Because of this, the committee found that indigent defense representation in those counties does “not meet the standard of being independent from political influence.” Second, the committee concluded that in counties with contract programs, local policy boards are required in order to provide independence and oversight, but many are failing to do so. Third, according to the committee, many county boards enter into contracts directly with contractors “with no attempt to provide independence, [and] [t]he selection, funding and payment in most of these situations are influenced by considerations of costs rather than quality of services.” Sadly, similar problems had been found in Nebraska over a decade earlier.
Selection and Assignment of Counsel
In order to protect the independence of attorneys assigned to represent indigent defendants, the ABA has long recommended that the assignment of cases be made in an orderly way to ensure that they are fairly distributed and to guard against patronage and its appearance. This admonition, however, is routinely violated. Many jurisdictions lack uniform rules and procedures governing the selection and assignment of counsel, leaving assigned counsel systems ripe for abuse. The result sometimes is an unfair selection or exclusion of certain counsel and an inappropriate allocation of cases, all of which erode the independence of the defense function.
In Texas, despite the passage of the Fair Defense Act in 2001, which created state indigent defense standards, the counties retain discretion in creating the process and procedure for the appointment of counsel to indigent cases in their local courts. In Harris County, new standards and procedures for appointment of counsel in juvenile cases were adopted in 2007, allowing judges to assign attorneys either according to a computerized random selection process or by court request. The latter method, which existed prior to the new standards, permits judges to favor some attorneys with political or judicial connections. For instance, one attorney reportedly made $40,000 from receiving nearly 250 juvenile appointments, despite having had his Texas law license twice suspended, having spent a day in jail for lying to the court, and having his attorney fees garnished by the Internal Revenue Service for failure to pay taxes. This attorney had reportedly been hired to represent the daughter of one of the three Harris County juvenile court judges in a vehicular manslaughter case. Two other attorneys, neither of whom was certified in juvenile law, made over $150,000 in 2007; one of the attorneys received many juvenile appointments from a judge who had been his law partner and for whom he had been a campaign treasurer.
While these Harris County attorneys were appointed in juvenile cases, three experienced, board-certified juvenile defense attorneys in Harris County were removed from the juvenile court list without being given specific reasons for removal. Under the Harris County rules, juvenile attorneys must be “approved by a secret ballot” by a majority of the three judges. One of the three attorneys removed from the list had reported to the Texas Task Force on Indigent Defense for several years an unfair allocation of appointments by one of the judges, and the judge was aware of the attorney’s complaints. The second attorney removed from the list was the law partner and spouse of the first attorney. The third attorney surmised a couple of reasons for her removal, including that she was aggressive in her defense of juveniles and caused the docket to slow down.
In Alabama, “there is little that is uniform in the way cases are handed out,” according to an attorney for the Alabama Administrative Office of Courts. Rather, the different circuits and courts employ their own methods with little or no oversight. In Mobile County, attorneys have complained about an unfair distribution of cases that favored some attorneys over others.
In Nebraska, appointment of both assigned counsel and contract defenders is handled by the judiciary on an ad hoc basis without the guidance of any standards or uniform procedures. In 2006, data from statewide surveys of judges, court-appointed attorneys (excluding public defenders), and county commissioners reflected a number of serious problems in the appointment process. For instance, 54% of district court judges surveyed responded that they do not maintain a list of attorneys for indigent defense appointments. In county and juvenile courts, 23% of the judges reported that their courts do not maintain lists of attorneys for appointment. Although systems that fail to use any rotation method are subject to abuse, one judge candidly admitted that, as an attorney, the judge would view the lack of rotation as “a hidden, secret system.” This judge also conceded that he knew of other judges who “have ‘paid attorneys back’ for too many trials or other offenses by not appointing them again.” Not surprisingly, over 20% of attorneys surveyed in Nebraska perceived the use of patronage in the appointment process.
Similarly, a 2007 performance audit of the Office of Indigent Defense Services in North Carolina noted that indigent defense attorneys in that state suffer from a lack of independence from the judiciary. In areas with public defender offices, North Carolina law requires that the chief public defender be appointed by the senior resident superior court judge of the district in which the public defender will be practicing. As the State Auditor points out: “Since it is reasonable to assume that each public defender has an interest in being reappointed to the next four-year term and would like to remain in the judge’s favor during the interim, neither the public defender, his or her staff, nor the private counsel they appoint can be considered free from judicial influence.” The 2007 audit further found that, although each county is required to establish a committee to create a roster of attorneys for indigent appointments, 41 of the 100 counties had failed to do so.
Failures in Providing Counsel
While some indigent defendants are represented by overworked attorneys or attorneys lacking sufficient independence, other indigent defendants obtain representation too late in the process or simply do not receive counsel at all. As discussed in Chapter 1, Gideon and its progeny require that all indigent defendants facing the possibility of incarceration—even the future possibility of incarceration after a suspended or probationary sentence is revoked—have a constitutional right to counsel. Moreover, the right to counsel attaches at all critical stages of a case, beginning with the initial court appearance when a defendant first learns of the charges. If a person elects to proceed without counsel, the record must show that the individual fully understood and voluntarily waived the right to an attorney.
No Counsel and Late Counsel
Whether because of a desire to move cases through the court system, a desire to keep indigent defense costs down, or ignorance, pervasive and serious problems exist in misdemeanor courts across the country because counsel is oftentimes either not provided, or provided late, to those who are lawfully eligible to be represented. Also, when counsel is not provided, all too often, the defendant’s waiver of legal representation is inadequate under Supreme Court precedents. As a result, there is a shocking disconnect between the system of justice envisioned by the Supreme Court’s right-to-counsel decisions and what actually occurs in many of this nation’s courts. These conclusions were borne out by investigations conducted on behalf of the Committee during 2006 by three experienced criminal justice professionals who visited court proceedings in eight states across the country.
Here are several illustrative findings of our investigators: “… the judge advised … [approximately 15] … defendants [all of whom were in custody] that they had the right to ask for counsel to be appointed, but the circumstances … almost impel indigent defendants to plead guilty and give up their right to counsel. There is no public defender or appointed counsel present at the proceedings with whom defendants can consult. Consequently, a defendant who wants … counsel must wait several days for counsel to be appointed and possibly several more days for appointed counsel … to make contact.” All but one or two of the defendants pled guilty and received fines and probation with suspended sentences. Another of our investigators summarized his observations of a court in a different state: “For all practical purposes, this is [a] court which provides appointed counsel infrequently and very late in the processing of a case. The practices surrounding pretrial release place great pressures on detained defendants to enter guilty pleas without the assistance of counsel.”
The foregoing observations are supported by numerous other sources. In the State of Washington, for example, despite court rules requiring early appointment of counsel, many courts do not appoint counsel in misdemeanor cases, either by not offering counsel to the accused or through accepting invalid waivers of counsel. In Mississippi, a woman accused of stealing $200 from a slot machine languished in jail for eight months without receiving a lawyer; she finally pled guilty in order to be released from jail.
The late appointment of counsel not only affects the attorney-client relationship, but it also undermines a defendant’s right to be heard on pretrial release and the ability to prepare a defense. Unless counsel represents the accused soon after arrest, witnesses may be lost, memories of witnesses may fade, and physical evidence useful to the defense may disappear. Further, like the woman from Mississippi mentioned above, without defense representation, defendants may plead guilty just to obtain their release. In many jurisdictions, counsel is not appointed when bail is initially set, forcing indigent defendants to represent themselves and advance arguments for bail reduction and their release from custody. In Maryland, for example, indigent defendants frequently appear at bail review hearings before a judge without counsel because the state public defender’s office is not funded sufficiently to assign attorneys for them. As a result, indigent defendants arrested for relatively minor crimes were sometimes incarcerated for 30 days or even longer. Yet, when law school students argued for bail in these same cases, they were successful two-thirds of the time.
The late appointment of counsel has even more severe consequences for indigent defendants in Mississippi, where the delay in assigning lawyers for the indigent has been described as a “pervasive problem.” Months may pass before counsel is appointed, causing many people charged with non-violent offenses to serve more time in pretrial custody than warranted for the offenses themselves. One 50-year-old woman charged with shoplifting $72 worth of merchandise spent 11 months in jail before a lawyer was appointed to her case, and an additional three months before pleading guilty. Juveniles also are adversely affected by the late appointment of counsel. A study conducted several years ago in Montgomery County, Ohio, reported that, because of insufficient funding, lawyers were unavailable to juveniles at their initial appearance, and many youths nevertheless acknowledged guilt without ever speaking to counsel. Similarly, in Indiana, juveniles are frequently unrepresented at critical court appearances, and many juveniles waive their right to counsel without fully comprehending the right. In Illinois, due to untimely appointments, most attorneys are unable to speak with juveniles prior to the first court appearance, including detention hearings, and are, therefore, unable to provide meaningful representation at this stage.
When jurisdictions fail to fund indigent defense sufficiently to allow for timely access to attorneys and when courts fail to timely appoint counsel, the frequent result is not a net cost-savings, but instead, a shifting of expenses to corrections. For example, it cost Mississippi taxpayers over $12,000 to incarcerate the 50-year-old woman charged with shoplifting discussed above. Despite cost savings that can result from the timely appointment of counsel, legislatures may still refuse adequate funding of indigent defense to make timely appointment possible. A recent story from Georgia illustrates the point. A county sheriff in Georgia noted that once the public defender office was opened, with a requirement that attorneys meet with incarcerated clients within 72 hours of arrest, the average daily jail population was reduced from 220 inmates to 190 inmates, despite an increase in the number of persons arrested. As a result, the county saved $40 per person per day in incarceration costs. Despite these data, one of the proposed state legislative responses to a budget deficit in indigent defense was to extend to five days the state’s 72-hour requirement for initial attorney-client meetings. Ultimately, the proposal did not pass.
Although courts usually claim to offer counsel to those eligible, the way in which the offer is made and the procedure for obtaining a defendant’s waiver of counsel often undermine the right itself. Concerns over cost or movement of the court’s docket can lead to a lack of proper notification of the right or to pressure to waive it. The legal requirements for waiver of counsel, i.e., that it be “knowing, voluntary, and intelligent,” were discussed earlier. Beyond the court’s role in making certain that a defendant’s waiver of counsel is valid, prosecutors have a professional responsibility duty “not [to] give legal advice to an unrepresented person, other than the advice to secure counsel.” Similarly, the ABA has recommended that prosecutors should refrain from negotiating with an accused who is unrepresented without a prior valid waiver of counsel. Prosecutors also are admonished by the ABA to ensure that the accused has been advised of the right to counsel, afforded an opportunity to obtain counsel, and not to seek to secure waivers of important pretrial rights from an accused who is unrepresented.
Unfortunately, these legal and professional duties, as well as recommendations regarding appropriate professional conduct, are ignored on a daily basis. Throughout the country, many indigent persons, both adult criminal defendants and juveniles, are not fully informed of their right to counsel and are asked to sign waiver of counsel forms or speak to prosecutors without fully understanding their rights. The Committee’s investigators found that, of the courts they visited in eight states, some failed to provide a detailed explanation of the right to counsel on the written waiver form. Further, the right to counsel was not always explained individually to the accused, but instead was provided to groups of defendants en masse, sometimes through the use of a videotaped message. In a number of courts, judges made no inquiry as to whether defendants understood the consequences of their waivers of counsel. In one court, defendants were not informed of their right to counsel at all.
In several courts, the Committee’s investigators found that defendants were encouraged to negotiate with prosecutors without the assistance of counsel, and in one court they were required to do so. These negotiations frequently involved a discussion of the charged offenses and led to guilty pleas. As one of our investigators explained in his report: “In … [this] County defendants are frequently told by the judge to negotiate with the prosecutors before … [the judge would consider] appointing a lawyer. These negotiations usually result in guilty pleas. No lawyer for defendant is present or involved.” Further, the courts often placed pressure on defendants to plead without counsel by informing them that a request for a lawyer would delay their case or release from jail, or that refusing a plea offer would result in a harsher sentence in the future.
In many Georgia courts, defendants have been instructed to speak with prosecutors about their charges and potential plea offers before their cases were called and often before any admonition of the right to counsel. Further, courts frequently have failed to explain the right to counsel to individual defendants prior to accepting lengthy and complicated signed waiver forms. In one egregious example from Georgia, a judge advised felony defendants that the court was prepared to follow the prosecutor’s sentencing recommendation in exchange for a guilty plea, without ever mentioning the right to counsel until the judge and defendant were halfway through the plea colloquy. In a Rhode Island court, a judge offered a defendant six months in jail for an immediate guilty plea without counsel, adding that if the defendant requested a lawyer, he would likely be sentenced to three years in jail.
Absence of Law-Trained Judges
Following a yearlong investigation, in the fall of 2006, the New York Times published three articles about serious errors and abuses of power by New York State town and village court judges, the majority of whom are not attorneys and sometimes lack adequate legal training. The conclusions of the New York Times investigation concerning indigent defense representation are fully supported by a study of defense services in New York, also released in 2006, and undertaken on behalf of a New York commission on the future of indigent defense appointed by the state’s chief judge. While the articles in the New York Times and the New York study deal only with the State of New York, the problems that they document almost certainly extend beyond that state since there are still 30 states in this country that have limited jurisdiction courts that are presided over by non-law trained judges.
Specifically, in New York, of the 1,971 judges in its town and village courts, almost three-fourths are non-lawyers, and none of the courts are “courts of record,” as there is neither a verbatim transcript of their proceedings nor an audio recording. Each year, in New York, these judges preside over about 300,000 criminal matters and sentence persons to jail for sometimes up to two years. According to the study conducted on behalf of New York’s commission on the future of defense services, problems in providing counsel include judicial ignorance or misunderstanding of the law on the duty to provide representation, improper advisements of the right to counsel, and the outright refusal to appoint counsel for certain offenses, even though the right to counsel is clearly applicable. The problems are exacerbated by the understaffing of public defender offices, which prevents them from appearing at all first appearances in their jurisdictions, and county pressure on local judges to contain costs by not appointing counsel.
According to a decision of the U.S. Supreme Court, a person who is tried before a non-lawyer judge is not denied due process of law under the federal Constitution so long as there is an absolute right to a new trial before a judge who is a lawyer. However, if a defendant is unrepresented in a criminal proceeding in a New York town or village court, the defendant is unlikely to be aware that he or she can request a new trial before a law-trained judge since there is no requirement under New York law that a defendant must be so advised.
Lack of Performance Standards, Training, and Oversight
When counsel is provided, beyond the need for reasonable caseloads, as discussed earlier, it is essential that the lawyers adhere to performance standards and that they be appropriately trained and supervised. National professional standards require that defense counsel’s knowledge, skill, and training be sufficient to provide representation in each case. ABA principles also require oversight of an attorney’s performance measured against national and local performance standards. As discussed in Chapter 1, although national performance standards exist, they are not binding in any state or local jurisdiction. Even when such standards are adopted by a jurisdiction or defense program, due to lack of resources and high caseloads, compliance is not usually monitored or enforced. As a result, untrained and unskilled attorneys often fail to provide competent representation, as required by rules of professional conduct, and the effective assistance of counsel demanded by the Sixth Amendment.
In recognition of the need to improve indigent defense representation in Nevada, in 2008, the Nevada Supreme Court did what few other state supreme courts have done—approved new indigent defense performance standards. However, Nevada’s counties are responsible for 95% of the burden of funding indigent defense, and many of the counties have declared that they cannot afford to ensure compliance with the standards.
In Alabama, where counties employ assigned counsel systems for indigent defense, brand new attorneys out of law school are reportedly just as likely as experienced attorneys to be assigned to serious cases, even homicide prosecutions. A September 2008 editorial said of the system: “It is unconscionable that a defendant facing serious criminal charges can get stuck with a tax or real estate lawyer.” In recognition of the problem, Alabama’s Chief Justice has called for indigent defense oversight across the state.
Similarly, in many upstate counties in New York, assigned counsel systems require no experience or training to be eligible to receive court appointments. Some of these programs also lack performance standards and oversight. Thus, attorneys fresh from passing the bar can end up having their first criminal trial be a felony case and can even be asked to represent someone charged with homicide. Similar problems exist in counties with public defender offices, where there is little or no funding in the budget to provide training or oversight. One new public defender, who was given a felony caseload after only a few months of practice, described his training as “trial by fire.”
In 2007, in Caddo Parish, Louisiana, new public defenders with no training were assigned the existing caseloads of their predecessors, regardless of prior experience. One attorney, right out of law school, started with a caseload of 270 felony drug cases. In Clark County, Nevada, where the public defender office was found to lack any performance standards or oversight of its attorneys, public defenders were observed to treat clients with disrespect and neglect their duties. Further, many attorneys in the office did not have the necessary training to handle their caseloads. In Maine, a 2003 study noted that attorneys need have no experience or training to represent juveniles. Moreover, in some remote areas of Maine, juvenile attorneys must drive eight to 10 hours just to attend continuing legal education training. In Washington, lack of attorney training regarding effective communication, developmental issues, mental health and learning disabilities contribute to inadequate communication with juvenile clients.
Also, in Mississippi, a lack of performance standards, training, and supervision of indigent defense providers has been cited. In one egregious case, for instance, two attorneys who had been appointed to a death penalty case were disbarred or suspended from practice after the trial and before the direct appeal. On other occasions, attorneys have continued to receive appointments even after being found to provide ineffective representation.
Lack of Experts, Investigators, and Interpreters
Another area that seriously undermines the ability of indigent defense attorneys to provide an effective defense is the lack of access to and funding of non-attorney services such as experts, investigators, and interpreters. The outcome of a criminal case can hinge on retaining an appropriate expert or conducting a thorough fact investigation. In the case of non-English speaking clients, qualified interpreters are critical for attorney-client communication. Not only do states have a constitutional duty to provide these kinds of assistance, as discussed in Chapter 1, but professional standards also require defense counsel to seek such services as are necessary to prepare an effective defense.
Investigators are needed to interview witnesses and collect physical evidence, while experts are often necessary to present an effective defense (e.g., insanity or battered woman’s syndrome), test physical evidence, or provide an opinion independent of the prosecution’s state-supplied expert. As noted earlier, while the prosecution has at its disposal the services of state and federal law enforcement and experts, indigent defense attorneys commonly require prior court approval in order to access the same services. Often, however, defense attorneys are denied the use of experts or investigators due to limited funds. When judges serve as the gatekeepers of the funds for non-attorney services, they often feel pressure from elected officials to guard limited financial coffers. Moreover, when attorneys know that requests for services are frequently denied, they sometimes fail to seek the needed services.
In California, a study of cases claiming ineffective assistance of counsel, conducted for the California Commission on the Fair Administration of Justice, revealed that, of the 121 cases in which deficient attorney performance was found, 44% involved a failure to investigate. In addition, a statewide survey of judges and indigent defense attorneys disclosed that over two-thirds of respondent judges conceded that their counties lacked adequate financial resources to fund indigent defense investigations. Similarly, with regard to expert services, nearly two-thirds of indigent defense attorneys reported difficulty in obtaining approval for defense testing of DNA and other forensic evidence.
In Michigan, a 2002 task force reported that reimbursement requests for experts and fees for investigators were often rejected. The same problems continued to exist in Michigan in 2008, where investigative and expert services in some counties are rejected by the court or simply never requested. In one county, rather than seeking the necessary investigative services from the court, attorneys commonly ask the prosecutor to have law enforcement perform the investigation.
In Virginia, some indigent defense attorneys are told by judges to use the state’s experts, while other attorneys struggle to find experts willing to work for unreasonably low fees. Similarly, some judges in New York advise indigent defense attorneys to use the state’s experts rather than authorize funds for independent defense experts.
Some jurisdictions also fail to provide certified interpreters to assist at court proceedings and attorney-client meetings when non-English speaking clients are represented. A study of the public defender’s office in San Bernardino, California, found that, instead of interpreters to translate, attorneys used a friend, family member of the client, or another person on staff. In New York, many indigent defense attorneys have no access to interpreters to conduct out-of-court communication with clients, but may use friends or family members of the client. Moreover, some local courts in New York have no official interpreter to assist in court proceedings.
Inadequate Client Contact
Professional conduct rules require, and standards applicable to defense representation recommend, that attorneys keep clients informed of the status of their case and promptly respond to client requests for information. Obviously, to represent a client properly, defense attorneys must meet with their clients as soon as possible after a case begins in order to review the facts and circumstances of the case, determine the client’s wishes, and prepare a defense, including determining whether investigation and legal research must be performed.
The unfortunate reality is that indigent defense attorneys often are unable to comply with their professional duty respecting client contact due to several factors, such as excessive caseloads and the failure to be appointed in a timely manner. In addition, a jurisdiction’s system of public defense sometimes lacks the resources to furnish counsel at the client’s first court appearance. Early client contact is crucial to establishing the attorney-client relationship, building trust, and, if the client is incarcerated, seeking the client’s pretrial release.
When attorneys have too many cases, client contact suffers and is sometimes virtually non-existent. Attorneys become unavailable to clients because they are constantly in court, and initial attorney-client meetings are forced to take place in court. The situation is often worse for incarcerated defendants. Some defense counsel lack sufficient time to visit their clients in jail or are unable to accept collect calls from the jail. For example, in Caddo Parish, Louisiana, where many attorneys labor under excessive caseloads, some public defenders cannot comply with an office policy to visit clients in jail within 10 days of their appointment. One public defender admitted to not visiting in-custody clients until after the preliminary hearing is held, which may be a month or more after appointment to the client’s case. Another reported that his jail visits were “sporadic” and that he usually only made telephone contact with incarcerated clients. A public defender representing juveniles described client contact as “kind of nonexistent.” Some public defender clients in Caddo Parish have actually filed pro se subpoenas for jail visitation records to alert the court that they have not been visited by their attorneys. Given such a lack of client contact, it is not surprising that public defenders rarely argue motions seeking pretrial release for their clients within a month of being appointed.
Out-of-court client contact is even more imperative when, as is often the case, courts lack sufficient space for confidential attorney-client meetings, eroding the attorney-client privilege and counsel’s ability to prepare a defense. In some courts in Missouri, for example, attorneys must meet with their incarcerated clients while they are shackled to other inmates, thereby violating attorney-client privilege principles, making it even more necessary to discuss their cases out of court. Nevertheless, due to overwhelming workloads, many public defenders do not consult with incarcerated clients on even a monthly basis, as required by Missouri Public Defender Guidelines.
In Oakland County, Michigan, attorneys cannot meet privately with in-custody clients when they are in court but must do so while their clients are in the jury box in the presence of sheriffs and other defendants. In other counties in Michigan, many court-appointed attorneys meet their clients for the first time in court, weeks after their initial appearance. In Shiawassee County, many attorneys meet their in-custody felony clients for the first time in court at the preliminary hearing. Worse yet, in Chippewa County, attorneys regularly meet for the first time with their clients charged with felonies at their circuit court arraignment, even though they have had two to six weeks to do so after the preliminary hearing in district court. Client contact with indigent defendants is not necessarily better when their cases are on appeal. In South Carolina, for example, the appellate office’s caseloads are so high that only defendants in capital cases can expect to be visited by their attorneys. Moreover, attorneys lack the time to properly respond to written correspondence, leaving clients with little or no personal contact from their attorney.
Lack of Technology and Data
Indigent defense systems often lack adequate technology and data systems. In this day and age, the absence of computers and access to online legal research is really quite remarkable. Yet, in Caddo Parish, Louisiana, discussed in the preceding section, some public defenders appearing in juvenile court did not have computers, and their secretary had no fax machine or copier, having to rely instead on the courthouse’s equipment. Besides wasting attorney and staff time, sharing equipment raises concerns regarding confidentiality. In New York, some public defender offices have little or no access to online legal research. One large office did not even have updated copies of New York’s penal law.
Some public defender offices also do not have sufficient management information systems and technical support, leaving them unable to compile relevant statistical data regarding their caseloads. While the inability to collect and report on caseloads and cost data is undoubtedly due to underfunding, it also becomes a cause of underfunding. Without accurate empirical data, the programs cannot demonstrate to governmental funding sources its cost-efficiency and need for additional appropriations. Moreover, government policy-makers are unable to assess systemic deficiencies and compare various programs to determine those that are most efficient.
For example, several years ago, a review of the Riverside County, California, Public Defender Office found that the system used to track data was so old that the company that provided the software would no longer service it. Managers were unable to use the system to track the number of cases attorneys were carrying and case dispositions, making it impossible to project accurate staffing needs. Similarly, in West Virginia, because the agency that administers and oversees the state’s indigent defense system was underfunded, it was unable to compare the cost-effectiveness of public defender offices and private assigned counsel. In Pennsylvania, there is no uniform method for maintaining or reporting data on indigent defense, and some counties cannot even estimate public defender caseloads. Similarly, California lacks reliable data to compare the number of indigent cases handled by public defenders, contract counsel, and private court-appointed counsel.
Finally, when data systems are lacking or inadequate, potential conflicts of interest cannot be sufficiently determined (e.g., concurrent or prior representation of a co-defendant, victim, or witness). For programs that have appropriate data information systems, potential conflicts can easily be checked by running various names through the system. Without this information technology, conflict checks must either be conducted manually or not at all. When conflicts are discovered late, new counsel must be appointed, cases are delayed, efforts often are duplicated, and unnecessary additional costs are incurred.
Erosion of Conflict of Interest Rules
As discussed in Chapter 1, there are few instances in which a single attorney, or multiple attorneys from the same office or program, should represent two or more accused persons in criminal prosecutions and juvenile delinquency cases. Doing so not only likely violates professional responsibility rules, but claims of ineffective assistance of counsel are possible if the client is convicted. However, in public defense, in order to avoid paying private, assigned counsel, some public defender offices allow different attorneys from the same office or program to represent co-defendants, even when it would normally be a conflict of interest for them to do so.
Regardless of whether such conduct is permitted under the jurisdiction’s rules of professional conduct, as interpreted by the state’s courts and bar ethics committees, the practice provides less protection from conflicts of interest than accorded private clients represented separately by retained criminal and juvenile defense lawyers.
For example, in Missouri, in order to avoid having to pay outside counsel in conflict cases, the State Public Defender represents co-defendants by using public defenders from different regional offices within the state agency. In this way, two public defenders from the same program represent two co-defendants with competing interests at trial. Quite aside from appearances, the “conflict public defender” is disadvantaged, as she does not have office space in the region to which she has been sent and is likely to be unfamiliar with the local judges and court procedures in the county.
Lack of available funds for outside counsel also was cited as a reason that the public defender office in Clarion County, Pennsylvania, represents co-defendants.
Similarly, in Georgia, recently public defenders were reported to be representing co-defendants as a cost-saving measure. Such representation not only creates ethical problems for the attorneys, but it may also increase the potential that a conviction will be overturned on appeal. This problem is likely to become more pervasive in Georgia, at least in Fulton County, where the conflict defender office was recently closed as a cost-saving measure.
Throughout the country, lack of funds for indigent defense sometimes lead to cases being continued, prosecutions suspended, and new lawyers substituted for present counsel. Ironically, when these sorts of events occur, governments that already are underfunding indigent defense may end up incurring even greater costs. At the very least, the quality of our system of justice is severely and negatively affected.
For example, in Minnesota, after a $4 million cut in funding and a 13% layoff of the state’s public defenders, courts are now being staffed with fewer defenders. The reduction is causing inefficiencies, wasting time and resources. As described by the chief public defender for the 5th Judicial District, when public defenders are scheduled in two courts or counties at once, the whole system becomes inefficient; judges, prosecutors, victims, witnesses, law enforcement, and court personnel all must wait for the public defender before the case can be heard. In Blue Earth County, where one of two public defenders handling arraignments was laid off, the judge commented that the remaining defender is overwhelmed and unable to resolve as many cases. The result is that “[t]he whole process is slowed down,” and the court’s calendar is “clog[ged].”
In Miami (Dade County), where public defenders are facing serious case overload and a lawsuit about their caseloads is pending on appeal, public defenders are overworked and need to continue cases. During April 2008, one public defender had 13 cases set for trial on the same day and was forced to continue all but one of them. In Orange-Osceola County, Florida, which, like Miami, has been hard hit by budget cutbacks, felony cases also are being delayed. The local prosecutor has summed up the situation: “Justice delayed is justice denied in many cases.”
In Oregon, a funding crisis several years ago resulted in a moratorium on appointing counsel in certain criminal and juvenile cases. Following a $50 million cut from Oregon’s Judicial Department budget, the chief justice issued a funding reduction plan that directed courts, for a period of four months, to cease appointing counsel and suspend the arraignment of persons charged with certain felonies and misdemeanors, and to defer certain pending misdemeanor and probation violation cases.
Case delays are particularly problematic in death penalty cases, which are the most costly to defend. Recent news in Georgia has highlighted these problems. In 2008, the Georgia Public Defender Standards Council was unable to pay private defense attorneys in cases throughout the state, in some instances for more than six months of work. A number of capital cases ground to a halt. In a highly publicized capital case, for instance, which involved 54 separate charges and 478 potential state witnesses, a lack of funding caused the case to be halted several times over the course of three years, one court-appointed attorney to be instructed to work fewer hours, and new counsel from the state’s Capital Defender Office to be appointed as a cost-saving measure, over the defense team’s objection. In another capital case, appointed counsel requested a continuance on the grounds that there were no available defense funds to enable the case to continue. The judge denied the motion and, at the request of the prosecutor and over the defendant’s objection, appointed local public defenders who sought to withdraw from the case, due in part to their already crushing caseloads. Still another attorney sought to withdraw from a capital case because he had not been paid in more than one year, had received no money for investigators or experts, and felt that he was being ineffective.
The failure to provide adequate funds has resulted in delays in capital trials in Louisiana as well. In 2005, in the case of State v. Citizen, the Louisiana Supreme Court ruled that, if the state’s government failed to pay for defense counsel, the prosecution would be stayed until funding was provided.
Similarly, in Madison County, Indiana, attorneys who had represented a defendant in a murder case for nearly four years sought to withdraw when the county refused to pay for their services and for the cost of experts. One of the defense experts commented that his fees were small in comparison to the “unlimited resources” of the federal agency that had reviewed the prosecutor’s evidence. When the court asked the defenders to negotiate the cost of the defense with the county’s Public Defender Board, the attorneys responded that doing so would limit their ability to prepare a defense and jeopardize their client’s right to effective assistance of counsel. Ultimately, the court appointed new attorneys, but doing so results in a duplication of much of the four years of effort by the original attorneys and additional costs.