9 Ways States Can Strengthen ‘Underfunded, Overburdened’ Public Defense

Strong public defense systems are badly needed in the U.S. because people too poor to afford their own lawyers are routinely denied meaningful representation in court. To help states assess the quality of their public defense systems, the Prison Policy Initiative (PPI) has released nine guiding questions.

Recognizing the current shortcomings of their public defense systems allows states to strengthen such systems and reduce incarceration rates, argue the authors of “Nine ways that states can provide better public defense” in a briefing paper published Tuesday.

“Public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened,” said the paper, co-authored  by Ginger Jackson-Gleich and Wanda Bertram of the PPI.

The first question — “Does an independent agency oversee public defense in your state?” — suggests the importance of assigning a statewide agency the authority to oversee and evaluate defender services. Not only can agencies create standards governing workloads and performance, but they can also “insulate public defense systems from the whims of political pressure or judicial interference,” the authors write.

As of 2017, 16 states lacked any such entity, and more than half the agencies that did exist lacked independence.

In evaluating defender systems, the authors also examine cost: “Does your state shoulder the cost of public defense or leave the burden to local governments?” As recently as a few years ago, 11 states provided “minimal to no state funding” for public defense, forcing local governments to pay.

This arrangement is unsustainable, say the authors. According to the Sixth Amendment Center, state — not local — funding of defense services is most effective, because local governments have revenue-raising restrictions placed on them by the state, and the jurisdictions most in need of public defense services are often the ones least likely to be able to afford them.

Overburdened local governments aren’t the only way funding issues can undercut public defenders.

The authors ask: “Does the way attorneys are compensated create perverse incentives?” In places without public defender offices, courts appoint counsel on a case-by-case basis, compensating them at very low hourly rates. Alternatively, courts may hire private attorneys to represent an unlimited number of clients for a set fee.

Both models incentivize attorneys to do “as little work as possible,” since a set fee determines their profit.

Who funds public defender systems is as important as how they’re funded, the paper argues.

“Do fines and fees fund public defense?” the authors ask, writing that some places pay for public defenders (as well as prison and jail expenses, probation and parole services, GPS monitors, and court processes) through the collection of fines and fees.

The authors call this approach both “cruel and unstable,” since many people burdened with fees and fines can’t afford them, and forcing them to pay can push them further into debt. The authors argue that states should follow the lead of California, which recently abolished many criminal legal fees.

It’s possible, also, that state practices compromise the ability of public defenders to effectively represent clients. In “Does the state give public defenders access to the information they need to do their jobs effectively?” the authors argue that prosecutors often violate the requirement to turn over exculpatory evidence to the defense.

States, however, can outmaneuver such violations by making information about police and prosecutorial misconduct available to defense counsel or to the public. By passing protections like Ohio’s open-file discovery laws, which require the prosecution share everything in their file with the defense, states can safeguard “a more efficient criminal justice system that better protects against wrongful imprisonment and renders more reliable convictions.”

People summoned to criminal court often face other legal or non-legal challenges, like deportation, a pending eviction or a denial of public benefits. In answering the question, “Does your public defense system provide holistic defense for clients who need other legal (or even non-legal) assistance?” the authors argue that “exemplary” public defense systems are those that advocate for clients beyond representing them in criminal proceedings.

For instance, the Alameda County public defender’s office launched an immigration representation project, representing noncitizen clients in subsequent removal proceedings and helping them obtain permanent resident status in the U.S.

By answering the nine listed questions, states can bolster their public defense systems, “ensuring that every person accused of a crime has satisfactory assistance of counsel.”

Doing so, the authors argue, could improve the lives of the 4.9 million people arrested annually, most of whom are poor and struggle to afford legal representation.

“Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist,” the authors write.

This summary was prepared by TCR Justice Reporting intern Eva Herscowitz.