In the 1960s, complying with the ruling seemed quite possible. Sure, it would be expensive for local governments that had to oversee and fund such efforts. But the number of indigent folks accused of crimes was smaller and, arguably, more manageable. Cities and counties established public-defender offices, staffed by salaried lawyers who were paid by the city, county, state or some combination of these; they also developed a roster of private attorneys whom judges appointed on an as-needed basis, paying an hourly rate; and some contracted with a single law firm or attorney for all local public defense.
It sort of worked.
But over time the war on drugs, the “three strikes” laws and the lock-’em-up mentality of politicians have led to indigent clients flooding the courts. Courts are overburdened, and across the country, lawyers for the poor are routinely buried beneath crushing caseloads and working in underfunded offices. Without adequate resources, it’s hard to hire the investigators, experts or paralegals to mount a good defense. The stakes are high — for the man on death row to the teen picked up for marijuana possession.
Attorney General Eric Holder decried the “crisis” in indigent defense when he spoke to the American Bar Association last year. Programs across the country were “underfunded and understaffed,” he said. Citing “insufficient resources, overwhelming caseloads and inadequate oversight,” he worried about a breakdown: “Far too many public defender systems lack the basic tools they need to function properly.”
The problems have been well documented. A 2009 investigation by the Constitution Project, the National Legal Aid & Defender Association and the National Right to Counsel Committee concluded that the system of providing counsel for the poor was broken and that defendants’ constitutional rights were routinely violated. The groups drew from news articles, law reviews and myriad panicked reports that cities, counties and states had generated. Their report, “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” documented instances in which public defenders carried as many as 500 active felony cases at a time (the American Bar Association recommends 150) and as many as 2,225 misdemeanor cases (the ABA recommends 400).
The recent economic crisis has exacerbated the problem. In New Orleans last year, the chief public defender had to lay off a third of his staff. Hundreds of people languished in jail for months, waiting for a lawyer to be appointed. One man had been there two months for possessing a joint. Another man, accused of burglary, sat in jail for more than a year while waiting for an attorney to be assigned to him.
These shortcomings greatly affect people’s lives every day. In Washington state in 2004, a 12-year-old was accused of molesting his 5-year-old neighbor after the boys had played a game that, the younger one said, involved the older boy putting his hands down his pants. The 12-year-old’s overworked public defender advised his client to quickly plead guilty. The lawyer carried 240 other criminal cases, never spoke to a witness, hired no investigator, spoke to no experts, met with his client’s family for less than two hours and failed to speak to his client alone once; the court ordered the 12-year-old to register as a sex offender for the rest of his life, be tested for sexually transmitted diseases and attend sex rehab workshops. Six years later, on appeal, the state Supreme Court determined that the boy’s counsel had been inadequate, and Washington is making strides in reforming indigent defense.
But plenty of cases are rushed through courts around the country, with equally disturbing results. The crisis in our courts raises questions about how we as a nation define “justice.” Will we pay lip service to the notion that everyone has a lawyer to represent them in court? Will we provide a warm body in a suit and tie to stand next to a defendant? Or do we equate “justice” with fairness — and provide folks who are accused of crimes with meaningful representation? Is the country committed to a level playing field, the adversarial system of justice in which both sides are properly armed to argue and from which truth emerges? Are we committed to making the system work as it is designed to?
In the 1800s, Mark Twain joked that “the law is a system that protects everybody who can afford a good lawyer.” In many ways, unfortunately, that remains true today.