In defense of indigent defense-how the broken public defense system exacerbates racial disparities

The 6^th Amendment to the US Constitution guarantees all citizens the right to representation when accused of a criminal offense. While Supreme Court decisions have clarified this to mean “effective” representation, the system has often failed to live up to this standard. With the majority of criminal defendants turning to the indigent defense system, why are we starving it of funding and compromising this important right? Under the preface of being “tough on crime” we have continued to pour money into the prison systems, building more and more institutions while spending less and less to help people defend themselves against the criminal accusations that threaten to send them there.

The public defense system is unique. Although the federal government mandates quality representation be provided to people who cannot afford their own attorney, they provide no real oversight or funding into the state, city, and county governments tasked with providing these defenders. While a set of standards known as the Guidelines for Legal Defense Systems in the United States was issued by the United States Justice Department in 1976, these standards have been implemented half heartedly in some instances and not at all in others.

Currently, it’s estimated that more than 75% of criminal cases use the public defense system. This means only one-quarter of Americans accused of a crime can afford, or care to hire a private defense attorney. Of these citizens using the public defense systems, racial minorities constitute the vast majority. With 25.3% of the Hispanic population and 25.8% of the African American population living in poverty, it stands to reason these groups would get the most use out of a defense system designed to represent the poor.

We can point to a variety of reasons why these population groups are represented disproportionately within the criminal justice system, many if not most of them deeply rooted in institutional racism. But the failures of public defense is seldom examined as a significant contributing factor. The Bureau of Justice Statistics reports 69% of white males within state prison systems made use of the public defense system while 73% of Hispanic and 77% of African American men did.  So while this makes it clear that those below the poverty line, forced to use the indigent defense system, are more likely to be serving time than those who are living more comfortably, it also shows how a broken public defense system can only serve to further widen the racial disparities of the entire criminal justice system.

Each state has a slightly unique indigent defense system. Most are ran at the state level though some states have separate systems from county to county. The notoriously broken indigent defense system in Michigan, for example, is one of the 7 states that has no state funded public defense system at the trial level. Defendants here, as in many other jurisdictions across the country, are at the mercy of the county in which they have been charged, lucky to get an attorney that isn’t too overworked to give their case the time it needs.

From not being informed of their eligibility for a public defender, to being forced to go through some stages of the process without an attorney at all, many of those accused feel pressured into accepting plea agreements by prosecutors that lead them to believe the plea is their best option. And yes, some even accept those plea agreements despite being completely innocent of the charges they face. With little knowledge of the legal system and the frightening potential prospect of prison time, the promise of probation in exchange for a guilty plea can be all too tempting.

Even those who have the guidance of indigent defense from the beginning are far less likely to go to trial (resolving the case with a plea bargain) than those who have the benefit of a private attorney. If you’ve had any contact within the criminal courts, you know it’s not unheard of for a defendant to meet their publicly appointed attorney, summarize the case for them, answer a few questions, and accept a plea deal all within a matter of minutes. Does this mean the public defense attorneys aren’t qualified or don’t care? Not necessarily.

The Bureau of Justice Statistics found that 15 of 19 state public defender systems were over the nationally recognized workload standards in their Census of State Public Defender Programs, 2007, released just this month. In Rhode Island, the state with the highest number of cases per public defense attorney, the rate was 42% above the recommended level with each lawyer carrying a caseload of 391. This, the BJS admits, is a “conservative estimate” as it does not include cases received before the 2007 reporting year. Surely, no one attorney handling 391 cases per year can offer each defendant on their caseload the time necessary to effectively and adequately represent them.

Another side of the indigent defense system lies in contract attorneys. Most states use both a public defender option and supplement this by contracting with private attorneys. Just how a private attorney gets their cases from the courts, again, varies from jurisdiction to jurisdiction. In California, about half of the counties use contract services. Recently, some of these counties have come under fire for awarding contracts to firms who can offer the greatest number of cases at the lowest rate. This sort of discounting is likely to benefit no one but the firms themselves and the bottom-line of the county.

Like so much of the criminal justice system, indigent defense has been reduced to little more than a cog in the wheel that sends hundreds of thousands to prison and millions under the watchful eye of community corrections. Many of us, not immediately impacted by the public defense system assume that the Constitutional right to effective counsel is respected and upheld in the courts of our nation. We trust that if accused of a crime, we will be appointed an attorney to act as an advocate on our behalf. Instead, defendants who are often overwhelmed and confused by the complex legal system, have no choice but to put their trust in overworked and under-regulated lawyers who may or may not do their case any good.

It seems under the current disjointed system, equal protection under the law and due process are only accessible to those who can afford a private attorney or for those who are lucky to be facing charges in a jurisdiction that has managed to maintain a level of order within their public defense system. We can only hope that the recent hints toward more progressive justice by lawmakers at the state and federal levels will include in-depth analysis of the broken indigent defense system and perhaps an eventual move towards reform.