Since the landmark Supreme Court case of Gideon v. Wainwright in 1963, criminal defendants who face incarceration have been guaranteed representation by an attorney if they cannot afford one. Gideon spurred most states and the federal government to form public defenders’ offices, which have since been overwhelmed due to limited resources and a significant increase in prosecutions.

The prison population in the United States was 217,000 in 1963; it now stands at approximately 2.3 million. Unfortunately, resources devoted to representation for indigent defendants have not kept pace with the runaway increase in the number of prisoners. In 1973, the National Advisory Council on Criminal Justice Standards and Goals (NAC) established recommended caseload maximums for public defenders; decades later, average caseloads are often much higher.

Prison Legal News has previously reported on the disparity in results in cases handled by public defenders versus court-appointed attorneys and private attorneys; the better results for private attorneys can be directly attributed to the additional time they are able to devote to their clients. [See: PLN, Jan. 2011, p.18].

As a result, said John Gross of the National Association of Criminal Defense Lawyers, “Many of us don’t consider [the caseload standards] to be realistic if you expect quality representation.”

Recent studies have found that public defenders would need to work 50% more hours to accommodate an average caseload. According to the NAC recommendations, an attorney should handle no more than 400 misdemeanors, 150 felonies or 200 juvenile cases annually, though public defenders typically exceed those maximums.

Based on 2007 data, around 73% of county public defenders surpassed the maximum recommended NAC caseloads, according to the U.S. Department of Justice (DOJ). And according to 2009 data, the average caseload for public defenders in Florida was 500 felony cases and 2,225 misdemeanor cases.

It is no wonder that many public defense attorneys feel that time constraints reduce their ability to represent their clients to “meet ‘em and plead ‘em.” Although funding for federal public defenders is higher than that budgeted on the state level, federal courts are also inundated by cases – particularly immigration cases involving illegal entry or reentry into the U.S.

Additionally, more than half of county-based public defenders’ offices did not have caseload limits and could not refuse to represent indigent defendants, according to an October 2010 report by the Bureau of Justice Statistics.

The DOJ has warned that “caseload limits alone cannot keep public defenders from being overworked into ineffectiveness; two additional protections are required. First, a public defender must have the authority to decline appointments over the caseload limit. Second, caseload limits are no replace­ment of a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” 

Many courts have insufficient public defenders to handle all cases, and some defendants are therefore denied their constitutional right to counsel. In other jurisdictions staff shortages and insufficient funding result in huge backlogs. Such delays not only violate defendants’ right to due process, but also result in an added burden to taxpayers due to increased jail costs to incarcerate defendants too poor to post bail. Defendants sometimes remain in jail for years awaiting trial.

In a January 2015 commentary, The Marshall Project urged the U.S. Attorney General to include prosecutors and judges in discussions over indigent defense. Public defenders are all too aware of the crisis, but others involved in the criminal justice system need to be better informed and engaged in order to address the issue.

Federal judge Alex Kozinski on the Ninth Circuit Court of Appeals appeared to have heard The Marshall Project’s call for reform. On July 24, 2015, he published a paper criticizing, among other things, the favoritism towards prosecutors within the justice system as well as the inflated perception of witness credibility and evidence validity in criminal cases.

A study conducted by the ACLU estimated that public defenders in New Orleans spend an average of 7 minutes per client, and in Detroit and Atlanta the average times are 32 minutes and 59 minutes, respectively. In July 2015, the ACLU of Northern California filed a lawsuit against state officials and Fresno County challenging the indigent defense system, where 60 public defenders handle around 42,000 cases a year. See: Phillips v. State of California, Fresno County Superior Court (CA), Case No. 15CECG0220.

“What is happening in Fresno is significant,” said Jonathan Rapping, an attorney who founded Gideon’s Promise – an organization that provides support and training for public defenders. “These lawsuits force state systems to examine what they are doing.”

Notably, the amount of money spent on indigent defense, including public defenders’ offices, is dwarfed by budgets for prosecutors and law enforcement on both the state and federal levels. Although expenditures for indigent defense have increased only slightly, funding for police and corrections has increased ten-fold and six-fold, respectively, from 1986 to 2008.

On the state level there is a wide disparity in per capita expenditures on indigent defense, ranging from an average $4.29 per capita in Mississippi to $42 in Alaska. The U.S. currently spends less on indigent defense than every European nation on a per capita basis. Clearly, if our criminal justice system is to fulfill the promise of the Gideon decision, more resources must be devoted to public defenders’ offices to balance the right of defendants to adequate representation against the power wielded by prosecutors.

Sources: www.motherjones.com, www.themarshallproject.org, www.reason.com, http://sixthamendment.org, www.acslaw.org, www.northwestern.edu

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