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Public Defenders and America’s Forgotten Promise
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In 1963, Gideon v. Wainwright decisively changed the legal landscape of the United States of America. Prior to the Supreme Court’s 1963 ruling, it was not common practice for state courts to provide an attorney for the accused, especially for state-level felony cases. In Florida, where the Gideon case originated, indigent defendants were only provided with legal counsel if charged with a capital offense prior to 1963. The Gideon decision reshaped the American criminal justice system; over 50 years after Gideon, indigent defendants routinely receive the services of public defenders or private attorneys contracted by court systems to handle poor defendants. Millions of Americans who have been accused of crimes, whether innocent or guilty, have been able to seek legal counsel for free or for significantly reduced fees.  While the decision of Gideon was monumental, society has consistently forgotten the spirit and legacy of the Gideon case. America has failed to live up to its promise of “liberty and justice for all” by permitting the steady erosion of the right to an attorney.

Gideon’s Army

The main problem plaguing the American criminal justice system is not a lack of legal representation. While the indigent accused have the right to an attorney because of Gideon and subsequent Supreme Court decisions, the efficacy of poor defendants’ criminal defense is sorely lacking. That is not to say that public defenders nationwide are incompetent or provide substandard legal assistance; the unfortunate reality is that public defenders are overworked, underpaid, and significantly underfunded.

Public Defenders, the proverbial soldiers in the trenches, do what they can, given their scant resources.

In 2012, annual criminal justice expenditures totaled roughly over $265 billion dollars. Policing, incarceration, and prosecution costs composed over half of these expenditures. On the other hand, annual funding for state public defenders’ offices total approximately  $2.3 billion dollars per year; this means that funding for Public Defenders constitutes less than 2% of criminal justice costs. Depending on the jurisdiction, the American Bar Association (ABA) estimates that 60-90 percent of criminal defendants require the services of Public Defenders offices due to indigency. The gross under-funding of public defenders’ offices is the main reason why public defenders are simply unable to meet the high demand for their services. The Department of Justice’s Bureau of Justice Statistics (BJS) paint a picture of a criminal justice system stretched to the breaking point:

  • A 2007 BJS study examined the caseloads of county-operated defender systems in 27 US states. The BJS found that 73% of the county-operated systems were operating above the maximum recommended caseload level.
  • In the same year, the BJS also conducted research examining state-level defender systems operated in 22 states. The BJS found that 15 of these defender systems were operating above the maximum recommended caseload limit.

The DOJ’s National Advisory Commission (NAC) recommends that public defenders not exceed 150 felony cases or 400 misdemeanor cases per year. In some jurisdictions, public defenders juggle more than 300 cases at a time. When considering the BJS statistics and the fact that America’s Public Defenders can only spend 6 minutes or less per case at arraignment, it’s not surprising that the Brennan Center for Justice asserts that “it is impossible to represent…clients while adhering to even minimal standards of professionalism.” For many Public Defenders across the nation, triage is their main priority when faced with daunting caseloads; however, even triage is becoming increasingly difficult.  The situation is so dire that in some states, the ballooning of caseloads in tandem with budget cuts have led to public defenders’ offices refusing court-appointed clients.

Society justifies its neglect of the rights of the accused by declaring that every American has the fundamental right to legal counsel. In practice, that is far from the truth. A defendant cannot expect to fully receive due process of the law when his attorney is handling over 100 cases. A public defender cannot fully assist his client if his office doesn’t receive funding for investigators. Paradoxically, the right to an attorney effectively does not exist for many Americans. You have the right to an attorney, but one who is likely unable to fully aid you because of their meager resources.

Remembering America’s Promise

It is wholly ironic and utterly shameful that a country that declares its citizens equal before the law only allocates a paltry amount to the defense of the accused. America must remember its 5th and 6th Amendment commitments to the basic democratic principles of equality before the law and the need for an effective adversarial system. If America is serious about the rights of its citizens, even those accused of crimes, it must meet two objectives. First, it must commit more resources to public defenders’ offices because they represent many of defendants moving through the criminal justice system. Second, it must also undertake sweeping criminal justice reform, especially through a change in the laws concerning drug use.

Moving forward, if state legislatures are fully unwilling to provide more funding to state and county-level public defenders systems, the federal government must step in. This is not a novel idea. In 2013, Rep. Ted Deutch (D-FL) introduced the National Center for the Right to Counsel Act, which would have created a private, not-for-profit center that provided grants and training to Public Defenders nationwide. His bill was endorsed by the American Bar Association. Ultimately, his bill was not passed during the 113th Congress. Rep Deutch reintroduced the bill in late September 2017; it is again unlikely to pass due to the pervasive “tough-on-crime” attitude among Republican lawmakers on Capitol Hill.

Any efforts to de-escalate the War on Drugs, which would also help unclog the court systems, are also unlikely to come to fruition due to President Trump’s commitment to draconian forms of “law and order.” Undertaking sweeping criminal justice reform, especially through a reform of drug laws, would benefit public defenders’ offices. Public defenders would not have to commit as many precious resources towards the defense of defendants involved in misdemeanor and felony drug cases, which have been clogging court systems across the country,

It will be an uphill battle for Public Defenders to get the resources they need and unlikely that sweeping criminal justice reform will occur. It is more desirable for politicians, on both sides of the aisle, to be perceived by voters as “tough on crime.” Any Congressman even suggesting that the accused deserve the rights guaranteed by the Constitution is liable to be labeled as “soft on crime.”

Public safety is a necessary goal, but it should not and must not come at the expense of individual rights, specifically, the rights of the accused. If Americans truly wish for a freer, more just society, it starts with the accused and their right to an (effective) attorney.

Author’s note: If you are interested in learning more about America’s Public Defenders, be sure to check out the HBO documentary “Gideon’s Army.”

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