by Christopher Zoukis
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right ... to have the Assistance of Counsel for his defense.” What exactly the “right” to counsel in a criminal matter means has been the subject of debate in legal circles and courtrooms since the amendment was written. For instance, if a person is charged with a crime, but cannot afford to pay for an attorney’s services, does he still have the right to counsel? And if so, where does the attorney come from, and how is she paid?
The U.S. Supreme Court settled the first question over 50 years ago in the seminal case Gideon v. Wainwright, 372 U.S. 335 (1963). In Gideon, the Court made it clear that the Sixth Amendment “requires appointment of counsel in ‘all criminal prosecutions’”—even when an indigent defendant cannot afford a lawyer. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries,” wrote the Court, “but it is in ours.”
Thus, for over five decades, it has been well-established that defendants in criminal prosecutions must be represented by legal counsel. But by whom? And who pays for the services of counsel when the accused cannot?
There are no clear answers to these questions. As a result, the requirement of counsel for indigent defendants has evolved in several ways, as have the methods used to fund these vital services. Depending on which of the 3,033 county or county equivalents examined, counsel is provided by contract attorneys, appointed attorneys, or organized public defender offices. And depending on the state, the money to pay for these services is provided by the local government, the state, or some combination of both.
This hodgepodge approach has led to an abysmal failure by government to carry out the constitutional mandate announced in Gideon. In 2013, then-U.S. Attorney General Eric Holder noted that the system of indigent defense in America “exist[s] in a state of crisis.” And in various speeches, Department of Justice officials have referred to the system as “inadequate,” “broken,” “unjust,” and “unworthy of a legal system that stands as an example to all the world.”
As the scourge of mass incarceration has grown unabated, the situation on the ground has grown increasingly precarious. The incarceration rate in the United States has nearly quadrupled since the Gideon decision, and the percentage of defendants who are indigent has doubled. According to the National Legal Aid and Defender Association (“NLADA”), 80 percent of criminal defendants cannot afford a lawyer. Meanwhile, state and county spending on indigent defense has been falling. Professor John Pfaff of Fordham Law School estimates that spending on indigent legal defense amounts to around $2.3 billion, a paltry one percent of the $200 billion spent annually on criminal justice overall.
Over half a century ago, Robert F. Kennedy said that the “poor man charged with crime has no lobby.” Despite the language of the United States Constitution and U.S. Supreme Court decisions such as Gideon, Kenney’s observation is as true today as it was then.
Louisiana: Where Gideon Went to Die
There are over 2.3 million Americans incarcerated today, making the United States the global leader in incarcerating its people. Louisiana, the 25th most populous state, has the highest rate of incarceration in the country. In addition to this dubious honor, the Pelican State is home to one of the nation’s most dysfunctional indigent systems in the nation.
In 2007, the state created the Louisiana Public Defender Board. This was done, in part, to set standards for openness and accountability—as well as uniformity of service. Prior to the creation of this board, local jurisdictions operated their own indigent defense boards, and systems varied from parish to parish. Unfortunately, the state did not change the method used to fund indigent defense, which relies heavily on local governments with funding levels varying considerably among different localities.
Louisiana is unique among states in primarily relying on revenue from speeding tickets and the like to fund indigent defense. This system, which results in significant uncertainty as to funding, regularly finds itself mired in one crises or another.
“Louisiana is an extreme at this moment,” said Marc Schnidler, executive director of the Justice Policy Institute in a 2016 Mother Jones article. “How they got to where they are—that tells the story of indigent defense in this country.”
Consider the current state of the Orleans Parish Defender’s Office. Once lauded by the Southern Center for Human Rights for its “vigorous client-centered representation,” the Orleans Parish public defense system has been in a downward spiral for years. In 2012, the office had a budget of $9.5 million to handle the representation of more than 80 percent of criminal defendants in Orleans Parish. By 2016, the budget had fallen to $6 million, with an additional $700,000 funding cut in the works.
But even when the budget was several million dollars higher, it wasn’t all peaches and cream in Orleans Parish. There have simply never been enough attorneys to handle the caseload. In 2013, according to Mother Jones, public defenders in Orleans Parish spent an average of seven minutes on each case. In 2014, the office employed 51 attorneys who were expected to handle more than 22,000 cases. On average, this meant that there were 431 clients per lawyer. Current caseloads are even higher, and the budget continues to shrink.
The National Legal Aid and Defense Association recommends that public defenders handle no more than 150 felony, 200 juvenile, or 400 misdemeanor cases. As a result of budget shortfalls, Orleans Parish Chief Defender Derwyn Bunton lamented that his attorneys routinely work double the recommended caseload. “No lawyer in the office is within the standard for caseloads,” said Bunton.
Orleans Parish public defenders have complained of the impossibility of proper representation when they can allot only a few minutes to each client. Tina Peng, an Orleans Parish public defender, wrote in a Washington Post op-ed that her caseload was “unconstitutionally high.”
“I miss filing important motions ... I am unable to properly prepare for every trial,” wrote Peng. “I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.”
Generally, such failures are not a result of incompetence on the part of the Orleans public defenders. These overworked and underpaid attorneys are true believers in a fair criminal justice system who are often struggling to survive themselves.
“It’s very difficult to meet the expectations we have for dealing with our clients,” said Bunton in a 2015 Vice.com article. “We can’t hire investigators or even have the support staff we really need. From hiring decisions, to promotions, to just running our office, the budget constraints have made things incredibly difficult for us.”
So much so that Bunton launched a crowdfunding campaign to meet fiscal needs in 2015. Despite raising thousands of dollars, many in legal circles questioned the propriety of resorting to online donations to properly fund the defense of indigent criminal defendants.
“For the Orleans Public Defenders’ Office, the crowdfunding campaign is inappropriate support for a constitutionally assured right,” wrote Kari Thierer of NonProfitQuarterly.com. “However, it will surely bring in some money, and it may end up being a good move to bring public attention to the problem.”
Bunton’s crowdfunding campaign did bring attention to the Orleans Defender Office’s financial woes, but it didn’t solve the problem. In January 2016, Bunton directed his defenders to begin refusing to accept certain cases, citing his office’s inability to continue to operate in an ethical and constitutional manner under the crushing caseloads. Those defendants who were refused were placed on a waiting list for representation.
With indigent defendants languishing in jail without attorneys, the ACLU stepped in, filing a federal class action lawsuit against the Orleans Parish defenders and the Louisiana Public Defender Board. The civil rights organization alleged that Bunton’s decision to waitlist indigent defendants violated the U.S. Constitution. But even the ACLU acknowledged that the lawsuit would not solve the problem in Orleans Parish.
“The lawsuit itself can’t change anything,” ACLU attorney Brandon Buskey told Mother Jones. “The political actors in Louisiana have to step up. The lawsuit can put pressure on them. It can point out that the system is unconstitutional. But if the state wants a better system, it has to fix it.” Bunton, who told the New Orleans Times-Picayune that his office couldn’t even afford to represent itself in the suit, defended his actions as a necessary evil.
“Is it better to violate the Constitution by being incompetent and ineffective?” he said in an interview with Mother Jones. “I think where we would be violating the Constitution and ethics and professional standards would be to continue to take on cases we don’t have the resources to handle.”
In February 2018, U.S. District Judge James Brady dismissed the ACLU’s lawsuit on federalism grounds. Judge Brady wrote that there was “no way to enter this funding fray without intermeddling in state criminal prosecutions,” which the U.S. Supreme Court has prohibited in previous decisions. Nevertheless, Judge Brady observed that it “is clear that the Louisiana Legislature is failing miserably at upholding its obligations” under Gideon. He chided, “[b]udget shortages are no excuse to violate the United States Constitution.”
One Orleans Parish judge took matters into his own hands, ordering the release of seven prisoners who had been refused representation by the Orleans Parish Defenders. Judge Arthur Hunter Jr. ruled that the continued jailing of the indigent defendants, with no end in sight and no money to provide a defense, violated their Sixth and Fourteenth Amendment rights.
“We are now faced with a fundamental question, not only in New Orleans, but across Louisiana: what kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?” wrote Hunter in his order.
Tulane law professor Pamela Metzger, who was appointed to litigate for the seven defendants’ constitutional rights, hinted that there might be similar rulings in other cases. Bunton noted that Judge Hunter’s decision was the “logical end” to the precarious situation in Orleans Parish.
“There’s no such thing as Cadillac justice and Toyota justice. There’s just justice,” Bunton told Mother Jones. “And we are not going to be complicit in any injustice.”
The Orleans Parish area is not the only location in Louisiana with a broken indigent defense system—far from it. In rural Winn Parish, the funding crisis has resulted in the public defender’s office being slashed from three attorneys, two investigators, and two secretaries to a single part-time lawyer. That lawyer, former Louisiana State University football player Herman Castete, instituted an Orleans Parish-style waiting list for indigent defendants. He also warned the Louisiana Public Defender Board that the situation could get even worse (as hard as that is to imagine) in Winn Parish.
“It may be impossible for the public defender’s office to remain open,” he wrote in a memo to the board, according to The Guardian. “There’s simply no money available.”
But that didn’t stop District Judge Jacque Derr from ensuring that at least one indigent defendant could be brought to trial. That would be Kenneth Bratton, who Derr referred to as a “one-man serial crime wave.” Bratton was facing at least three counts of burglary and three counts of trespassing, and he had led deputies on a manhunt.
Judge Derr was so intent on adjudicating Bratton’s guilt that, after the Winn public defender waitlisted him and two civil rights attorneys refused to take the case, Derr appointed the local city prosecutor to represent the accused man. “Kenny’s got a lawyer,” Judge Derr told The Marshall Project. “So now we can convict him.”
J. Keith Gates, the prosecutor-turned-“defender” who was assigned the case, denied any impropriety. “Look, it’s all courtroom work,” Gates told The Guardian. “There’s no conflict unless you’re prosecuting and defending at the same time.”
Louisiana Public Defender Board policy prohibits anyone who is a prosecutor from serving with the public defender’s office. But because Derr, Gates, and public defender Castete all agreed with the constitutionally-suspect arrangement, Bratton ended up with a prosecutor for his defense attorney.
Not everyone was okay with the plan, though. Stephen Singer, a former member of the Louisiana Public Defender Board and current law professor at Loyola University, objected. “He’s a prosecutor,” Singer told The Guardian. “He plays for the other team.”
For his part, Judge Derr is intent on keeping accused indigent defendants in his district locked up. Due process and the presumption of innocence be damned. “I’m not going to be the one that lets one of them out, unless a higher court tells me I must,” Derr said in The Guardian. “What I’m scared of is some serious offender who is guilty ending up walking down the street because of this…. All I can do is find a lawyer to agree to do it, or else these suckers are fixing to be home free.”
Clearly, Judge Derr does not subscribe to Blackstone’s famous formulation, “It is better that ten guilty persons escape than that one innocent suffer.”
Over in the 20th Judicial District, which covers the parishes of East Feliciana and West Feliciana, the public defender’s office consists of exactly one lawyer. Rhonda Covington literally handles hundreds of cases by herself because the state allocated a miniscule $34,086 for the district. This shocking amount forced Covington to cut the other attorney, the office cell phone plan, the office cleaning service, and lawn care. Covington no longer has health insurance.
But the district attorney’s office in the 20th District is doing just fine. According to The Guardian, the local district attorney’s office has about $1 million more in its budget than Covington has in hers. Again, the disparity in the funding levels between the two offices should shock the conscience of everyone. But obviously the powers that be are just fine with it.
The situation is similarly dire in nearly every jurisdiction in Louisiana. In the 16th Judicial District, indigent defendants often meet their attorneys mere seconds before pleading guilty in large groups, sometimes to major felony charges that carry sentences of up to life in prison. In Vermilion Parish, 10 public defenders were eliminated due to budget shortfalls, leaving only one. In Lafayette Parish, budget cuts forced the removal of 47 out of 65 public defenders.
The blame for the failure of the indigent defense system in Louisiana can be laid squarely at the feet of the legislature. Requiring local governments to fund a constitutional mandate with revenue from traffic tickets is a surefire recipe for disaster. In 2014, the Louisiana Public Defender Board called the situation “unstable, unreliable, and untenable.” Those words have proven quite prescient—and an understatement.
“Sure, Their Rights Are Violated”
Louisiana may be an outlier, but the constitutional guarantee of counsel for indigent criminal defendants is far from well-respected in the rest of the states. More than a decade ago, the Bureau of Justice Statistics (“BJS”) found that 73 percent of county-operated indigent defense systems nationwide were exceeding recommended workloads. And in 2010, a BJS study found that almost 80 percent of state level public defender offices were functioning above the recommended levels.
In 2009, the Constitution Project released a report decrying the sorry state of the indigent defense system. The report highlighted the “second-rate” defense that indigent defendants are provided, referring to the overloaded system as “a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric.”
“Sometimes the defenders have well over 100 clients at a time, with many clients charged with serious offenses, and their cases moving quickly through the court system,” according to the report. “As a consequence, defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources.”
Public defenders in Kentucky would probably be thrilled to have just over 100 clients each. On average, these overworked attorneys handled 448 cases a piece in 2015, 54 percent higher than the NLADA standard. There simply are not enough public defenders, and state legislators are not helping. When Republican Governor Matt Bevin proposed a paltry $6.2 million budget increase to fund 44 new positions in the defender’s office, the state senate rejected the addition. Ed Monahan, Kentucky’s public advocate and chief defender told The Marshall Project that the indigent defense system in Kentucky was in danger.
“Public defenders are the pack mules of the system,” said Monahan. “Pack mules can carry a lot. But you put one more box on an overburdened mule, and it won’t be able to function.”
In Missouri, where public defender offices are funded at the state level, the governor himself has worked hard to hobble the state’s indigent defense system. According to The Marshall Project, Democratic Governor Jay Nixon withheld additional funding to hire more public defenders and blocked the passage of legislation designed to improve the public defense system.
Michael Barrett, director of Missouri’s defender program, noted that since 2014, the office has lost 30 staff members, while taking on 12 percent more cases. So Barrett made a bold move: He asked a court to appoint Governor Nixon to represent an indigent criminal defendant
“Given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” wrote Barrett in his request.
The situation in Missouri has been dire for some time. In 2009, it was the second lowest-funded indigent defense system in the nation. A 2014 study recommended the hiring of almost 270 additional attorneys, but that never happened. Barrett estimates that his office has an average of $350 available for each client, whether they are facing a misdemeanor charge or a murder case.
“Let’s put that in context,” Barrett told The Guardian. “[I]f you or I were to hire counsel for a simple DUI, it would cost thousands of dollars.” Barrett’s attempt to compel the governor to represent an indigent defendant ultimately failed. But it did succeed in bringing publicity to the abysmal situation facing public defenders in Missouri. “I was disappointed but not surprised,” said Barrett.
Mississippi does not fund indigent defense at the state level, leaving its 82 counties to foot the bill. According to Al Jazeera America, that has resulted in some counties spending less than $2 per defendant (no, that’s not a misprint).
The funding situation in Mississippi has also led to many indigent criminal defendants remaining locked in jail for months while awaiting the appointment of an attorney. Jessica Jauch was held for 96 days before she got a lawyer and a hearing, at which point the case against her was dismissed. Cliff Johnson, a MacArthur Justice Center lawyer, told the Associated Press that situations like Jauch’s likely violate the Constitution. “I can’t think of a situation where denying someone an appearance before a judge for 96 days after arrest passes constitutional muster,” said Johnson.
But some officials don’t see a problem in Mississippi. Marcus D. Gordon, for instance, a circuit court judge who, according to Al Jazeera America, refused to appoint public defenders until after defendants are indicted, despite the unlimited amount of time a defendant can spend in jail between arrest and indictment in the state.
When asked in a 2015 interview by Al Jazeera America “Fault Lines” reporter Anjali Kamat whether this violated the rights of indigent defendants, Judge Gordon was flippant. “Lady, the criminal system is a system of criminals,” replied Gordon. “Sure, their rights are violated. But not all rights are violated that you’re calling violation.”
Despite this cryptic (unintelligible) response, Judge Gordon acknowledged that there are innocent people who go through the system, of which he is a gatekeeper, and end up in the penitentiary. But he claimed that it wasn’t his responsibility to ensure that the rights of indigent criminal defendants are not violated. “Go talk to the governor,” said Gordon. “Talk to the legislature. I do not have responsibility. I don’t have the time. And I don’t have the damn energy to do it all.” (Note: Judge Gordon died at the age of 84 in 2016, about three months after his retirement from the bench. He was best known for presiding over the trial that convicted Edgar Ray Killen of manslaughter in the 1964 deaths of James Chaney, Michael Schwerner, and Andrew Goodman, three civil rights workers.)
The ACLU and the MacArthur Justice Center filed a lawsuit alleging that the practice of indefinitely jailing indigent defendants without a lawyer violates the Constitution. “We’re in a mess right now in Mississippi when it comes to pretrial process in the justice system,” said Johnson, of the MacArthur Center.
The public defender system in Tennessee is in a mess too. Dawn Deaner, the chief public defender in Nashville, estimated in 2016 that her lawyers took up to 1,000 misdemeanor cases each. Deaner also calculated that her office was at least 22 attorneys short of what was needed in order to meet proper caseload standards. The shortage of public defenders in Nashville led to a 2016 courtroom showdown between Deaner and District Attorney Glenn Funk.
The court battle materialized as a result of a motion to dismiss murder charges against a Nashville man for violation of his right to a speedy trial. Such a motion isn’t that unusual in a criminal matter, but the argument made by Nashville Public Defender Georgia Sims in this case was: She argued that even though the defense moved for several years’ worth of continuances, they only did so because the state of Tennessee wasn’t properly funding the public defender’s office, making it impossible to properly prepare a defense for the accused, John Hernandez.
“Tennessee’s affirmative decision to inadequately fund the metro Public Defender’s Office has not only created an unmanageable caseload for public defenders, but has also forced both Mr. Hernandez’s attorney and this court to make the unconscionable decision of whether Mr. Hernandez is entitled to a right to counsel or a right to a speedy trial,” argued the Nashville public defenders in a court filing. “Under the circumstances, he cannot receive both.”
The motion was ultimately denied, and Hernandez was convicted. But the motion shed light on a system that Deaner compared to Lucy and Ethel trying to keep up with the candy coming down the conveyer belt in the famous episode of “I Love Lucy.” Deaner told the Nashville Scene that while her office desperately needs resources, the real solution to a broken indigent defense system is actually very simple: fewer clients.
“I would love for our office to be able to represent every single client who qualifies who needs a lawyer,” she said. “I would also love for there to be less of a need for taxpayers to have to pay for public defenders, because a lot of the workload that’s going through General Sessions Court is stuff that doesn’t need to be a crime.”
Some legislators don’t agree that there is a funding problem with the indigent defense system in Tennessee. State Senator Randy McNally told Vice.com in 2015 that “[s]pending on public defense is way too much.” McNally apparently believes that the $231 per closed case received by the Nashville public defenders is more than enough to provide constitutionally effective representation.
“I think the current system is tilted in favor of the defendant,” McNally said. “There was a brutal kidnapping, rape, and torture of a couple a few years back, and we had to pay for the defense of these monsters.” What that specific case has to do with the structural issue of appropriate funding levels for a constitutional right is baffling.
The situation for public defenders in many other states is similarly precarious. In Florida, Miami-Dade County defenders each handle, on average, 550 felonies and 2,225 misdemeanors annually. In Oklahoma, state appropriations for the indigent defense system have fallen more than 30 percent in the last 15 years, while the number of cases taken by indigent defenders has risen by more than 25 percent. And in Utah, where indigent defense is funded entirely at the county level, The Marshall Project reported that an estimated 62 percent of all misdemeanor defendants “had no access to counsel.”
Jonathan A. Rapping, a professor at Atlanta’s John Marshall School of Law and the founder of Gideon’s Promise, argues that a stronger public defender system is the solution to a fractured indigent defense system. “[O]ver the last fifty years, criminal-justice policies have become more expansive, more punitive, and more discriminatory,” wrote Rapping in an article for the Texas Law Review. “Public defenders are forced to serve as the system’s lubricant rather than in their true roles of providing the friction necessary to make sure no one reaches the other end without being afforded the required protections and making the road to sentencing less certain.”
There is a disconnect between the right to counsel enshrined in the Constitution and clarified in Gideon and what is being provided to indigent defendants on the ground. Lawsuits challenging the failed system have been brought by civil rights organizations in many states, including California, New York, and Pennsylvania. Until indigent defense systems are properly funded, they will fail to provide the representation constitutionally guaranteed to everyone, and such lawsuits will keep coming.
Appointed and Contract Attorneys: A Disaster Waiting to Happen
An official public defender’s office is not the only way that governments work to satisfy Gideon’s mandate. In some states, jurisdictions use contract attorneys to handle indigent defense needs. In others, courts appoint attorneys to represent poor criminal defendants. Both of these methods have proven to be ineffective in ensuring that indigent defendants receive a constitutionally acceptable defense.
In Louisiana, where a breakdown of the public defender system has left a gaping hole in the indigent defense apparatus, courts have resorted to appointing attorneys to represent indigent defendants. When the Caddo Parish public defender refused to continue providing services, judges began appointing random local attorneys to represent indigent defendants. At least they were experienced criminal defense attorneys, right? Wrong.
Civil attorneys practicing insurance, tax, and real estate law are being tapped to represent individuals facing lengthy prison sentences. These attorneys often have no experience whatsoever in the practice of criminal law. There is an enormous difference between handling a civil matter and a criminal one. You wouldn’t want a cancer specialist performing open heart surgery on you. Sure, they’re both medical doctors, but neither is competent in the other’s practice area. The same holds true for civil and criminal attorneys.
In a 2016 article for The Guardian, several appointed attorneys acknowledged that they had no business representing indigent people accused of serious crimes. “I wouldn’t want me representing me,” said Ryan Goodwin, an insurance attorney appointed to represent an indigent defendant. His client was a 16-year-old facing life in prison for a robbery at gunpoint.
Richard Lamb, a tax attorney who has never argued a case in court, put it succinctly. “It’s like asking a dentist to do heart surgery,” Lamb told The Guardian.
This is not the first time that judges in Caddo Parish resorted to appointing random attorneys to represent criminal defendants. In 1984, unsurprisingly, such an appointment had disastrous results. Glenn Ford, accused of murder, was represented by an oil and gas attorney and a personal injury attorney. Ford was convicted by an all-white jury in less than three hours, despite an important fact: He was factually innocent. Ford spent three decades of his life on death row before being exonerated in 2014.
Ford died a year after he was released from prison. According to The Guardian, neither Ford nor his family were ever compensated for his wrongful conviction and imprisonment.
Henry Walker, former president of the Louisiana criminal defense bar and longtime criminal defense attorney, highlighted the unrealistic nature of the appointment scheme used in Caddo Parish. “In three hours, they’re supposed to become criminal defenders?” Walker said. “They just learned how to trust the DA, make quick deals, dispose of the case, and go back to their real jobs.”
Local attorney David Turansky agreed and pointed to the day-to-day actuality of the practice of law. “We’re going to prioritize our paying cases, there’s no denying it,” said Turansky. “We’re just not going to spend our time learning constitutional law or what a ‘Batson Challenge’ is.”
Judge Brady O’Callaghan of Caddo Parish doesn’t see a problem with appointing attorneys who have never met a criminal defendant or stepped into a courtroom to represent indigent defendants facing long prison terms.
“If someone can depose a doctor for five hours, they can do a plea hearing,” Judge O’Callaghan told The Guardian. “I’ve never known a lawyer to tell a paying client: ‘I can’t learn this, I’m sorry.’” Of course, this shockingly naïve statement overlooks the fact that appointed civil attorneys have to “learn” both substantive criminal law as well as criminal procedure, each of which takes years to master, in time to mount an effective defense for a specific indigent client.
As to Judge O’Callaghan’s reference to “paying clients,” that’s a bit of a stretch. In Tennessee, for example, court rules limit compensation for appointed attorneys to $40 per hour for trial prep, and $50 per hour for time spent in court, rates that have been unchanged since 1994. Moreover, with very few exceptions, fees paid to attorneys appointed to represent indigent defendants are limited to $1,000 for misdemeanors and $1,500 for felonies. Is there a civil attorney in America ready, willing, and able to learn years’ worth of substantive criminal law and criminal procedure for a maximum of $1,500?
Capping fees in this way creates an incentive for appointed attorneys to spend as little time on each case as possible. And setting bottom of the barrel fees like the $40 per hour paid in Wisconsin aren’t enough to get even a semblance of an effective defense. Dean Strang, a Wisconsin attorney and one of the attorneys made famous by the Netflix documentary “Making a Murderer,” told a group of people interested in criminal justice reform that such fee structures were unrealistic.
“[I]t costs me eighty dollars per hour to keep my law firm’s light on,” said Strang. “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”
Some states avoid using appointed attorneys for indigent defense by contracting with private attorneys for representation of poor criminal defendants. According to the National Association of Criminal Defense Lawyers, at least 20 states have some form of contract system with private defense counsel for representation of an unlimited number of indigent clients.
It is not hard to imagine the potential problems with such a system. An attorney who contracts with a jurisdiction to handle all indigent cases, for instance, has a very obvious (and unethical) incentive to spend as little time as possible on each case—to quickly have all clients plead guilty regardless of guilt or innocence.
Studies have found that contract attorneys do spend very little time providing a defense to their clients. For example, Truth Out reported on a study by the Alabama Appleseed Center for Law and Justice that found contract attorneys provided substandard representation in four Alabama circuits. According to the report, “the attorney of record did not file any motions in 72% of the capital and non-capital felony cases.” And when these contract attorneys did file motions, they were “canned” or boilerplate motions. Moreover, “no motions were filed for experts or funds for investigatory assistance in 99.4% of the cases.”
The importance of motion practice in criminal cases cannot be overstated. While it may be a stretch to say cases are won or lost by it, the defense case can often be strengthened by effective or weakened by ineffective (and especially nonexistent) motion practice.
In Jonathan Rapping’s article for the Texas Law Review, the professor discussed the case of Robert Surrency. He was the contract attorney for all indigent defense cases in Green County, Georgia for 14 years. During that time, Surrency represented up to 400 clients per year, and at the behest of judges and prosecutors, pleaded his clients out 99 percent of the time. According to Rapping, Surrency “did not request investigative or expert services” and ultimately “came to see his high-volume plea-bargaining practice as ‘a uniquely productive way to do business.’”
But is that an ethical way to practice law? Not according to the American Bar Association. One of the ABA’s “Ten Principles of a Public Defense Delivery System” requires “parity between defense counsel and the prosecution with respect to resources and [that] defense counsel is included as an equal partner in the justice system.” Such parity requires that “[c]ontracts with private attorneys for public defense services should never be let primarily on the basis of cost.”
Not only do cost-focused contracts limit the resources of the defense attorney, they create perverse incentives to practice conveyer belt law, as in the case of Surrency. The ACLU and other civil rights organizations have filed class action lawsuits in multiple states, including Indiana and Utah, to put a stop to the use of low-bid, conflict-creating, indigent defense systems.
Don’t Forget to Pay for Your Free Attorney
Gideon requires that the government provide a lawyer to a criminal defendant who cannot afford one. But the indigent defense system is horribly underfunded nationwide, leaving poor defendants with no counsel, substandard counsel, or counsel with an incentive to hurry up and get them convicted (the functional equivalent of no counsel).
As difficult as it may be to imagine, it gets even worse. Many jurisdictions now allow indigent defendants to be charged the cost of the attorney provided by the government. According to a National Public Radio survey, that practice is allowed in 43 states and the District of Columbia.
Professor John Pfaff of Fordham Law School wrote an op-ed on this issue that appeared in The New York Times in April 2016. Pfaff highlighted “the insanity” of requiring an indigent defendant to pay part of his lawyer’s fees by pointing to South Dakota, where the state charges each indigent defendant $92 an hour for his or her public defender, “owed no matter the outcome of the case.”
“If a public defender spends 10 hours proving that her client is innocent, the defendant still owes the lawyer $920, even though he committed no crime and his arrest was a mistake,” wrote Pfaff.
In New Jersey, Newark’s liberal mayor, Ras J. Baraka, helped pass a law in 2015 that raised the fee charged to indigent defendants applying for free representation in Newark Municipal Court from $50 to $200. One would be forgiven for wondering how the seemingly mutually exclusive concepts of “fee” and “free” can co-exist. Presumably, it can be chalked up to yet another legal fiction.
Local indigent defense attorneys are clear on one thing, though: Their clients cannot afford to pay any fees. “For the most part [my clients] don’t have [the application fee]. It’s a lot of money,” New Jersey Office of the Public Defender lawyer Anthony Cowell told Al Jazeera America. “It’s been said it’s a revenue-generator, but you’re charging people who absolutely can’t afford it. They’re homeless, they’re mentally ill, they’re in shelters.... Maybe they collect [Social Security Disability] income, but it’s all spoken for.”
The American Bar Association warned as far back as 2004 that application fees such as those charged in Newark are dangerous. Even a $200 fee could cause an indigent defendant to “forgo the assistance of counsel, thereby increasing the possibility of wrongful conviction.”
Former Office of the Public Defender attorney Alex Shalom, now a senior staff attorney at the ACLU of New Jersey, was blunt in his assessment of the Newark fee. “This is a terrible way to recover fees,” Shalom told Al Jazeera America. “[Y]ou’re already facing an uphill battle to get your client to believe you’re a real lawyer. Then, to go, ‘By the way, I know you think I’m a shitty lawyer. Can you pay me $50?’”
In Jackson County, Michigan, indigent defendants are charged a $240 fee for misdemeanor representation. A study by the NLADA found that the fee has the exact impact that the ABA warned of in 2004: 95 percent of indigent defendants waived their right to counsel.
To add insult to the injury of being required to pay for a lawyer provided as a result of indigence, poor defendants can actually be arrested and jailed for failing to pay the fees in the first place. Unsurprisingly, the threat of being arrested—again—for failing to pay for a free attorney leads many indigent defendants to waive the right to counsel.
Pfaff called the idea of forcing a poor person to pay for an attorney guaranteed by the Constitution an injustice. “Someone who qualifies as indigent may be acquitted, only to be convicted of being too poor for the legal services the Constitution requires the state to provide,” wrote Pfaff. “This is not justice.”
Where do We Go from Here?
The crisis in the indigent defense system is fast approaching a tipping point. The U.S. Constitution is routinely violated by failures in the system, as are the ethical rules that govern the practice of law. There are men and women languishing in jail and prison cells who should not be there because jurisdictions across the nation neglect to properly fund and run a competent indigent defense system.
Fixing this broken system is a herculean task. Jonathan Rapping noted the difficulty of operating within a failing system, while simultaneously doing a competent job. “It’s a grueling task to spend every day pushing back against a system that harbors such low expectations for the quality of representation,” said Rapping. “It is not surprising that some lawyers enter the system full of idealism but ultimately resign themselves to the status quo. Others simply find it too difficult and leave before the pressure to conform overwhelms them. Even judges who preside over these cases provide their tacit approval of the system.”
But as former President Barack Obama’s chief of staff Rahm Emanuel once said, “You never let a serious crisis go to waste. And what I mean by that, it’s an opportunity to do things you could not do before.” There is certainly a crisis in the indigent defense system. But what can be done?
Rapping argues that the solution to the indigent defense problem is a stronger, better-funded public defense system. To that end, Gideon’s Promise provides comprehensive and ongoing training to public defender offices nationwide. The organization partners with chief defenders, trainers, law students, and law faculty across the country in order to raise the standard of indigent representation. But the movement that inspired Gideon’s Promise is of a greater scope, one dedicated to reform of the entire criminal justice system.
“[T]here will never be meaningful reform until we transform a culture in our criminal-justice system that has come to accept an embarrassingly low standard of justice for poor people,” writes Rapping. “This culture is driven by a set of assumptions that influence the mindset of not only those who work in the system (judges, prosecutors, police, defenders, etc.) but also policymakers and the public at large. This culture is reflected in the way that police, prosecutors, and judges exercise their discretion in ways that promote the current system; defenders who have come to accept their role in maintaining the status quo; policymakers who support policies that drive these outcomes; and a public that does not understand this reality.”
Professor Pfaff proposes a less complex, but no less powerful solution to the indigent defense crisis: federal funding. Pfaff’s solution could have bipartisan appeal and would ultimately save money.
“The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense,” suggests Pfaff. “This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget.”
Pfaff’s suggestion is sensible for many reasons. It would save money, advance justice, and reduce costly prison populations. But perhaps most importantly, it would solve a problem created by federal law—the U.S. Constitution—with federal money.
“From the very beginning,” wrote the Supreme Court in the Gideon decision, “our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equally before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
As the indigent defense system in this country currently stands, the poor routinely face their accusers with what amounts to no lawyer. Until that changes, whether by funding or otherwise, there will be no equal justice under law in America.
Sources: www.themarshallproject.org, www.theguardian.com, www.motherjones.com, www.nytimes.com, http://sixthamendment.org, www.huffingtonpost.com, www.truth-out.org, www.cnn.com, www.npr.org, www.nola.com, www.csmonitor.com, www.vice.com, http://america.aljazeera.com, www.stltoday.com, www.startribune.com, http://genprogress.org, http://mimesislaw.com, www.commondreams.org, https://greaterscheme.org, www.freep.com, http://okpolicy.com, www.outsidethebeltway.com, www.bostonglobe.com, www.nonprofitquarterly.org, www.nashvillescene.com, www.ap.org; Jonathan Rapping, “Returning Gideon’s Trumpet: Telling the Story in the Context of Today’s Criminal-Justice Crisis,” Texas Law Review (2014); American Bar Association, “Ten Principles of a Public Defense Delivery System,” (February 2002); Heather Perry Baxter, “At a Crossroads: Where the Indigent Defense Crisis and the Legal Education Crisis Intersect,” Berkeley Journal of African-American Law & Policy (2016)
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