In The Public Defense


A new bill before Congress aims to overhaul the nation's legal aid systems

A bill introduced in Congress last week offers long overdue help to the country's beleaguered public defenders.

The omnibus Justice for All Reauthorization Act of 2010, introduced by Senator Patrick Leahy (D-VT) contains language earmarking $20 million between fiscal years 2011 through 2015 for the country's under-funded and over-worked legal aid providers. Including a two-year program of technical assistance, the amendment to Bill S3842 is aimed at ensuring that states comply with Sixth Amendment guarantees of the right to counsel, and it allows the Attorney General to sue states who are deemed to be not in compliance.

The bill, a larger and more substantive version of justice reform legislation enacted in 2004, probably has little chance of approval this Fall. Observers say S3842 has come too late in this Congressional session to have a chance of passage, and any decision to reintroduce it will depend on the political landscape following the November midterm elections.

Nevertheless, the fact that the bill was introduced at all suggests that Justice officials are now willing to “bring in the resources, prestige and power of the government to this problem,” says Robert C. Boruchowitz, founder of the Washington Defender Association, and author of Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Court.

Boruchowitz and other experts contacted by The Crime Report say the staggering case load for the few public defenders available has created one of the most egregious gaps in the U.S. Justice system.

They say that thousands of poor people, many of them minorities, have been left with a stark choice: plead guilty and accept whatever punishment is meted out; or put themselves at the mercy of the court.

And more troubling still, many public defenders or attorneys assigned by the court do not have the training or time to build an adequate defense.

Boruchowitz, now a professor at the Seattle University School of Law, cautioned that while the Attorney General has long had the power to enforce Sixth Amendment compliance in the juvenile justice system, the power has yet to be used in indigent defense cases. It would be rare for the DOJ to sue states, he notes, adding that it was more likely they would try to first come to a compromise.

This latest legislative attempt to fix systemic problems throughout the nation's public defense system comes on the heels of the September 2010 Bureau of Justice Statistics release of the first study of such programs.

5.6 million cases

Using information from the Census of Public Defenders to produce the reports State Public Defender Programs, 2007 and County-based and Local Public Defender Offices, 2007, Bureau of Justice Statistics (BJS) researchers found that approximately 1,000 offices across the nation employing 15,000 attorneys processed 5.6 million cases that year, the last year statistics were tracked.

Almost a quarter of the 530 county-based public defender offices reported a lack of resources and attorneys to process the 4 million cases tried at a local level. And only four of the 17 reporting state programs had enough attorneys to meet caseload standards.

This wasn't news to David Carroll, the director of research for the National Legal Aid & Defender Association, a Washington D.C. based not-for-profit group which unites individual legal professionals and legal organizations working to ensure indigent defense.

“In many states there is public defense in name only,” said Carroll, who has conducted research on public defense systems in Michigan and Louisiana, and says the crisis is “much worse” than indicated by the BJS reports.

Although the right of access to counsel was reinforced by the groundbreaking 1963 Supreme Court decision, Gideon v. Wainwright, state public defense or legal aid systems widely vary in quality, standards and structure around the country. The public defender may be employed by a state office, an individual counsel assigned to the court or outsourced to a local law firm which signs a contract with the court.

The patchwork system is aggravated by the chronically under-funded and under-staffed legal aid offices around the nation. The result: an untold thousands of cases have ended with wrongful convictions. Most of the public outrage over the situation has focused on death penalty exoneration cases, where DNA evidence or more sophisticated legal teams have been able, on appeal, to undo the harm committed in initial trials by either the lack of legal aid help or a poorly mounted legal defense.

But experts contacted by The Crime Report say some of the most blatant injustices occur in misdemeanor courts or in cases where defendants are brought up for relatively minor charges.

'Running people through the mill'

“In some jurisdictions they just not assigning public defenders in misdemeanor courts,” said Carroll. “If we are just running people through mill and not worrying about fairness, then we are sending innocent people to jail and leaving real perpetrators in the communities.”

A roadmap for change has been available since 2002, ,when the American Bar Association (ABA) issued “ten principles” of a public defense delivery system–highlighting judicial independence and quality control.

Several states have indeed responded to the ABA's call. This July, Maine opened its first statewide Commission on Indigent Legal Services, running it as an office separate from its judiciary. “This is giving us assurance that every client is getting quality representation to the extent that we can,” said Executive Director John D. Pelletier.

But the majority continue to ignore it. A 2009 report, Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel, published by the think tank Constitution Project's National Right to Counsel Committee, charged to find solutions, noted that lawsuits highlighting failures in the public defender system have been filed in 29 States.

The nature of the lawsuits varies. At least seven more states more than the 29 mentioned in the report face pending litigation on indigent defense. In Michigan and New York, lawsuits have been brought challenging entire systems for the delivery of indigent defense services. In Florida, Kentucky, and Tennessee, litigation is pending in which defense lawyers have challenged the actions of trial courts in seeking to require public defense programs to handle excessive caseloads alleged to be excessive.

Things are likely to get worse as states face new demands for budget cuts in today's strained economic climate.

“There are still lots of needs, caseloads are too high, and benefits are too low, (and) budget problems can push them further into abyss,” says Boruchowitz. “But maybe this [federal bill] is a light shining into the darkness.”

Cara Tabachnick is news editor of The Crime Report.

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