• Public Defense in the US

    Author : The Blanch Law Firm March 18, 2017

    National public defender day is slated for today, March 18th this year, and it is a good time to consider the state of our system of public defense – a constitutionally guaranteed right for every person so unfortunate as to face our criminal justice system firsthand. Cuts to funding and harsh laws for drug abusers have led to an increase in criminals coming into the system, meaning the public defenders are more overworked and underpaid than before.

    The Gideon v Wainwright case in 1963 cemented the constitutional right for attorneys for criminal defendants who were also indigent – those who cannot afford to pay for a lawyer shall be provided with one. But you would be hard-pressed to admit that SCOTUS in 1963 could have anticipated that the rate of incarceration across the country would quadruple since then, nor that nearly 90% of criminal defendants would qualify as indigent in 2016. Public defenders are the first and last lines of defense for poor criminal defendants, and yet funding is scarce – and becoming less available by the day. In 2008, the American Bar Association estimated that most state governments spent just over 2% of their $200 billion budget on criminal justice. Missouri’s public defender office is funded entirely by the state – and the governor has continuously blocked legislation which would cap the workload of public defenders as well as increase their funding. In Cole County, the attorneys in the public defender’s office work more than 225% above the recommended caseload limits. The state budget pays about $356 per case – 49th out of 50 states per capita indigent funding. As a result, the ACLU has recently filed a suit against Missouri for failure to adequately represent indigent defendants. In Louisiana, the problem is stark: the public defender’s office can no longer provide adequate counsel to the poorest defendants, resulting in courts randomly assigning cases to any lawyer in the area – even those who practice only civil law, like property or personal injury.

    This is a crisis not just for criminal defendants and courts but lawyers as well. Lawyers are under an ethical duty to not represent a client which you cannot adequately advocate for. An insurance lawyer with no criminal defense experience representing a client facing jail time would be as close to malpractice as you could get. So what do these lawyers do when their own state court tells them to? Of course, for criminal defendants, it’s worse. Most of these defendants are sitting in jail until they can get an attorney to represent them at various hearings. In New Orleans, one judge ruled that indigent defendants who were on a ‘waitlist’ to be served by a public defender must be released until they can receive a proper defense. Other judges in Loiusiana, however, are less flexible. Most judges refuse to let defendants out unless expressly ordered by a higher court, and therefore, often conscript other attorneys to fill in the gaps. Judges have also decided to have ‘bulk hearings’ in order to expedite their docket. Up to 50 defendants can be convicted and sentenced at one time for major crimes while the single public defender appointed to represent them all has to parse through the facts and defenses for each of them. How this is in anyway what the Gideon court intended to protect Constitutionally mandated rights is beyond comprehension. If anyone had a question that incarceration was a money-making endeavor, looking at the state of public defense in this country could only solidify that suspicion.