Quick Facts

The U.S. Constitution & the Supreme Court Standards for Organizing Defense Services & Client Representation Professional Duty of Lawyers Representing the Indigent Ineffective Assistance of Counsel: The Difficulty of Correcting Mistakes Conviction of the Innocent and the Importance of Counsel

Ch. 2: Indigent Defense Today

The Need for Reform is Decades Old Insufficient Funding The Burden of Too Much Work Other Impediments to Competent and Effective Defense Services

Ch. 3: How to Achieve Reform - Use of Litigation

Legal Theories Underlying Litigation Litigation Options: When and How Cases Are Presented Judiciary’s Authority to Provide Relief Lessons Learned from Prior Litigation

Ch. 4: How to Achieve Reform - Legislation

Legislative Background of State Oversight Commissions State Oversight Commissions Study Commissions

Ch. 5: Recommendations & Commentary

Introduction What States Should Do What the Federal Government Should Do What Individuals, Criminal Justice Agencies, and Bar Associations Should Do

Appendices

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Quick Facts

Excerpts from Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel

A Report of the National Right to Counsel Committee

Context

The PEW Center on the States recently reported that the United States now incarcerates far more people than any other country in the world. At the start of 2008, our country had over 2.3 million people locked up, followed only by China with 1.5 million persons behind bars. America incarcerates more people now than at any other time in our history; one person out of every 100 people is in jail or prison. This growth does not correspond to an equivalent increase in crime. In fact, crime has significantly decreased in the past 10 years.

Lack of Funding

In Minnesota, the legislature cut the Board of Public Defense’s FY 2009 budget by $4 million, forcing the layoff of 13% of public defender staff (23 public defenders). This is the largest staff reduction since the state assumed full indigent defense funding in 1995. The layoff is expected to cause public defender caseloads to go from bad (approximately 450 felony cases per attorney per year) to worse (approximately 550 felony cases per attorney per year).

In Tennessee, a one-of-a-kind study was performed that…compared the overall resources of prosecution and defense by examining the funding of all agencies related to the prosecution and defense functions. The study…concluded that total prosecution funding that could be attributed to indigent cases amounted to between $130 and $139 million for FY 2005. In contrast, indigent defense funding amounted to $56.4 million, a stunning difference of over $73 million. In California…a comparison of FY 2006–07 county indigent defense and prosecution budgets revealed that indigent defense was “under-funded statewide by at least 300 million dollars.”

In Harris County, Texas, the budget for the District Attorney’s Office is over twice the amount available for indigent defense and includes 30 investigator positions compared with no investigators for the contract defenders.

In Missouri, public defender salaries are so low that some attorneys are forced to work second jobs, and the cumulative turnover of public defenders between 2001 and 2005 was an astounding 100%!

In California, a statewide survey of judges and indigent defense attorneys disclosed that over two-thirds of respondent judges conceded that their counties lacked adequate financial resources to fund indigent defense investigations.

Crippling Caseloads

In January 2008, the Nevada Supreme Court ordered the two largest counties in the state to perform weighted caseload studies after finding that, “by any reasonable standard, there is currently a crisis in the size of the caseloads for public defenders in Clark County and Washoe County.” In Clark County, in 2006, the average public defender’s caseload was 364 felony and gross misdemeanor cases; in Washoe County, the average caseload was 327 felony and gross misdemeanor cases.

In 2006, six misdemeanor attorneys in the Knox County Public Defender’s Office in Tennessee handled over 10,000 cases, averaging just less than one hour per case.

In Florida …average public defender caseloads in Miami (Dade County) have risen in the past three years from 367 to nearly 500 felonies and from 1380 to 2225 misdemeanors. Despite these increases, the public defender office’s budget in the past two years has been cut by 12.6%.

Another Miami public defender handles 50 serious felony cases at a time. On a day when she had 13 of these cases set for trial, she received a plea offer of one year for a client but did not have time to discuss it with him and to communicate in a timely fashion with the prosecutor. With the case unresolved, the prosecutor rescinded the plea offer, and the client ultimately pled guilty and was sentenced to five years.

In 2007, in Caddo Parish, Louisiana, one attorney, right out of law school, started with a caseload of 270 felony drug cases.

Criminalization of Minor Offenses

It is now common in New York City to bring people to court for violations of the health code, riding a bike on a sidewalk, and drinking beer in public. As one scholar has noted, “never before have so many been arrested for so little.”

Unqualified Attorneys

In Harris County Texas, one attorney reportedly made $40,000 from receiving nearly 250 juvenile appointments, despite having had his Texas law license twice suspended, having spent a day in jail for lying to the court, and having his attorney fees garnished by the Internal Revenue Service for failure to pay taxes. This attorney had reportedly been hired to represent the daughter of one of the three Harris County juvenile court judges in a vehicular manslaughter case. Two other attorneys, neither of whom was certified in juvenile law, made over $150,000 in 2007; one of the attorneys received many juvenile appointments from a judge who had been his law partner and for whom he had been a campaign treasurer.

Lack of Representation

In Maryland, indigent defendants frequently appear at bail review hearings before a judge without counsel because the state public defender’s office is not funded sufficiently to assign attorneys for them. As a result, indigent defendants arrested for relatively minor crimes were sometimes incarcerated for 30 days or even longer. Yet, when law school students argued for bail in these same cases, they were successful two-thirds of the time.

In several courts, the Committee’s investigators found that defendants were encouraged to negotiate with prosecutors without the assistance of counsel, and in one court they were required to do so. These negotiations frequently involved a discussion of the charged offenses and led to guilty pleas. As one of our investigators explained in his report: “In…[this] County defendants are frequently told by the judge to negotiate with the prosecutors before…[the judge would consider] appointing a lawyer. These negotiations usually result in guilty pleas. No lawyer for defendant is present or involved.” Further, the courts often placed pressure on defendants to plead without counsel by informing them that a request for a lawyer would delay their case or release from jail, or that refusing a plea offer would result in a harsher sentence in the future. In a Rhode Island court, a judge offered a defendant six months in jail for an immediate guilty plea without counsel, adding that if the defendant requested a lawyer, he would likely be sentenced to three years in jail.

In Oakland County, Michigan, attorneys cannot meet privately with in-custody clients when they are in court but must do so while their clients are in the jury box in the presence of sheriffs and other defendants. In other counties in Michigan, many court-appointed attorneys meet their clients for the first time in court, weeks after their initial appearance.