Years of drastic budget cuts have created bottomless caseloads for public defenders–the ‘pack mules of the system’–and tipped the scales of justice against the poor
by Oliver Laughland, The Guardian
September 7, 2016
“What if I’d had more time?” Across the US, it is the question public defenders often find themselves asking the most. Would a young, pregnant African American woman in Lexington, Kentucky, who faces minor fraud charges laid down in April still be in jail if her lawyer had the time to appeal against an impossible $40,000 bail bond?
Could the 50-year-old illiterate white man in Cole County, Missouri, charged in August with vehicular assault and facing over a decade in prison, ever be assigned an attorney with the resources to defend him?
How many of the 30 defendants present for a single “mass plea” hearing in Louisiana’s 16th judicial district in June would have pleaded not guilty if they’d had more than 20 seconds of legal counsel?
In 1963, the landmark Gideon v Wainwright supreme court ruling enshrined the constitutional right for indigent criminal defendants–those who cannot afford to pay for a lawyer–to access legal counsel. But 53 years on, as the rate of incarceration across the country has more than quadrupled and up to 90% of criminal defendants in the US qualify as indigent, this cornerstone principle of the justice system has been eroded to breaking point.
As Ed Monahan, Kentucky’s public advocate and chief defender said: “We’re in crisis in Kentucky and in America.
“Public defenders are the pack mules of the system,” he said. “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 recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a manifestly unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform, but in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.
Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association, state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200bn spent on criminal justice by states and local government every year. The depth of crisis varies in each state, indicative of the complex patchwork of defense systems that are funded and administered differently dependent on jurisdiction.
In Missouri, for example, where the defender office is funded entirely at the state level, Governor Jay Nixon has repeatedly blocked the passage of state legislation to cap defenders’ workloads and increase their funding. Most recently, in July, Nixon withheld $3.5m of a relief fund approved by the state legislature to hire additional staff. As a result, the Missouri system is chronically overburdened, according to a 2014 study, which found the office was in need of 270 more staff to meet increasing caseloads.
Instead, said the director of the state’s defender program, Michael Barrett, the office has lost 30 staff members since 2014 due to funding cuts, and is taking on 12% more cases–now 82,000 a year. Barrett said this meant defenders were often juggling upwards of 150 cases at a time, with an average of $350 available for each client, ranging from minor misdemeanor cases to non-capital murders.
In Cole County, Missouri, defenders work more than 225% above the recommended caseload limits
“Let’s put that in context: if you or I were to hire counsel for a simple DUI, it would cost thousands of dollars,” Barrett said.
Last month, Barrett took a novel approach to mitigate the crisis. He attempted to compel Nixon, a former attorney general and private-practice lawyer, to represent a 50-year-old illiterate white man in Cole County–a right Barrett claimed he has under state law.
“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,” Barrett wrote.
The case itself was not extraordinary, Barrett said, but the defender’s office in Cole County is one of the most overburdened in the state, where defenders work more than 225% above the recommended caseload limits.
At a preliminary hearing weeks later, a judge handed down a single-page ruling which found that Barrett did not have the authority to compel the governor. “I was disappointed but not surprised,” said Barrett, adding that the case has now been assigned to one of his own overloaded attorneys.
The situation in Kentucky, another state-funded system, is a little different; funding difficulties are tied to the legislature rather than the governor’s office. Although the defender program was spared from sweeping budget cuts across the state, earlier this year the state senate rejected a $6.2m budget increase handed down by a sympathetic Republican governor, Matt Bevin, which would have created 44 new positions in the defender’s office.
Kentucky defenders took on average 448 cases in the past year, 54% above recommended national standards. Attorneys take on 11% more cases than they did a decade ago, and in areas such as Louisville now take close to double the national standard. The department received $49m last year – less than 0.5% of the overall state budget.
Even in Colorado, a state-funded system where the defender’s office is subject to a number of legislative safeguards that makes it one the most well funded in the country, agency executive Doug Wilson said his department was operating at a 10% staffing deficit. “I’m not telling you we’re fully funded and everything is peachy,” Wilson said. “I’m just telling you, we’re in better shape than most agencies across the country.”
In Utah, an estimated 62% of all misdemeanor defendants had no access to counsel at all, and at the very least 35% of public defense attorneys are overloaded with cases. Again, the root causes are different. Indigent defense is funded entirely at the county level, and in all but two counties indigent defense is provided by contracted attorneys–rather than defender’s offices–who are subjected to no state oversight and are paid a fixed fee per case. As such, concluded a recent study by the Sixth Amendment Center, defense providers in most of Utah are essentially incentivized to work their cases quickly instead of effectively, and are thereby systematically subjected to a conflict of interest.
But perhaps nowhere in the US is this crisis felt more acutely than in Louisiana, where Americans are incarcerated at a higher rate than any other state, and where the defender system is already on the brink of meltdown.
Unlike any other state, Louisiana pays for its indigent defense system primarily through speeding tickets and other locally generated revenue, rather than guaranteeing funds through the budgeting process. As a result, the finances of each defender’s office are subject to an extraordinarily high level of uncertainty, especially in districts without major highways–and during floods and other emergencies, when the police and courts are doling out fewer tickets.
Earlier this year, that unstable system was thrown into further disarray by Louisiana’s worst budget crisis in decades, which came in the wake of a steep drop in oil prices and years of tax-slashing by former governor Bobby Jindal. Around the state, defenders went into triage, putting thousands of their clients on waitlists for a lawyer.
But national attention on the crisis has waned, in part because conditions have improved in the city that receives no shortage of media coverage, New Orleans. After receiving a small influx of funds, the public defender’s office there ended its hiring freeze while reducing its waitlist to fewer than 40 defendants.
Out in Louisiana’s 63 other parishes, however, much of this summer’s improvement in the indigent defense system is shallower than it appears. In Caddo Parish, the courts have addressed the public defender’s funding problems by appointing all the lawyers in town–including tax, real estate and adoption attorneys–to the cases that were being neglected, which has superficially resolved the waitlist. In Winn Parish, a prosecutor is now working part-time as a defender, another makeshift and constitutionally questionable way of making do in the absence of funding.
In the 16th judicial district, up to 50 poor defendants are convicted and sentenced–at once–for major felonies carrying up to decades in prison, while the single public defender representing all of them struggles to present any of the facts and arguments in their separate cases. And in the 20th district, exactly one lawyer is now employed to run a defender’s office that covers two parishes and more than 900 cases.
Over the next two days, the Marshall Project, in collaboration with the Guardian, will focus on the dire state of public defense in Louisiana and the often bizarre coping strategies some parishes have been forced to take.
How bad is the picture around the country? Frustratingly, the scale of the problem remains unknown as dozens of states and jurisdictions produce no reliable data at all on the condition of their public defense systems.
The last nationwide survey of public defender offices was carried out almost 10 years ago by the Department of Justice’s bureau of justice statistics (BJS). The findings were stark: 73% of county-operated defender systems, utilized in 27 states, were functioning above the maximum recommended caseload level.
In the 22 state centralized defender programs, 15 ran on caseload levels that exceeded the recommended case limit. In a world of meagre measurement and inadequate oversight, many argue the findings were a significant underestimate of the nationwide strain on the system.
In 2013, the BJS embarked on a follow-up survey, aiming to examine all forms of indigent defense systems–not just the defender’s offices examined in 2013. But the process has been arduous. Although the department has had a full response rate among state-administered offices, only 70% of county-based programs have responded, meaning publication of this side of the research may be delayed until spring of next year.
Suzanne Strong, the statistician leading the research, described many of the county-based systems as a “completely unknown universe”.
Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and her predecessor, Eric Holder, the issue remains intractable. Congressional bills offering defender’s offices easier access to federal grant money have gone nowhere.
And in an election year during which Hillary Clinton has explicitly promised to “reform our criminal justice system from end to end”, dealing with the crisis in funding defense of the poorest people coming before the courts does not feature on her platform for change. Donald Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes no further than a vow to appoint “the best prosecutors and law enforcement officials in the country”.
In Washington, Democratic congressman Ted Deutch introduced in 2013 the National Center for the Right to Counsel Act, legislation that would create a private, non-profit centre to provide training, research initiatives and grant funding to defender’s offices around the country. Although the legislation was endorsed by a spectrum of legal groups, including the American Bar Association, it got nowhere in the House and was subsequently reintroduced last year.
“There has been a lot of bipartisan conversation here about criminal justice reforms, but most of that is focused on sentencing reform,” Deutch said. “We will continue to struggle with mass incarceration if we don’t do something to stop the system from feeding people into our prisons.
“In Washington, it sometimes takes a long time to help people recognize the problem that exists and that we have to grapple with.”
A few days spent in the courtrooms of rural Louisiana might be a start.
Oliver Laughland is a senior reporter for the Guardian US.
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