Indigent defense is in dire need of reform


look states, you're making Gideon cry. Boo.

A very important study was released earlier this week by The Constitution Project, titled: Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel [here’s a PDF of the entire report].

The study is a survey of all 50 states and the Federal government and the levels of indigent defense provided by each. It is an extremely lengthy report with many recommendations (22 in all) and observations. The study is damning in its conclusions about the state of indigent defense. Not only does the study identify workload issues with indigent defense but also structural problems with state or county agencies that inhibit the provision of adequate defense.

[As an aside, discussion of this report should not be limited to indigent defense circles, especially in times like these where money is drying up and indigent defense is bearing the brunt. Legislators, judges, etc., in States where funding has been cut or will be cut should be given a copy to read.]

From the Executive Summary:

Yet, today, in criminal and juvenile proceedings in state courts, sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric. Throughout the United States, indigent defense systems are struggling. Due to funding shortfalls, excessive caseloads, and a host of other problems, many are truly failing. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems. In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever. Although troubles in indigent defense have long existed, the call for reform has never been more urgent.

Chapter 2 of the Report summarizes the problems currently plaguing indigent defense:

  • Inadequate funding “continues to be the single greatest obstacle”.
  • Indigent defenders have “astonishingly large” caseloads.
  • Defendants get lawyers, but lawyers who cannot provide adequate representation because it “is not humanly possible to do so”.
  • “Tough on crime policies” exacerbate the caseload problems, the need to be aware of collateral consequences of conviction, the criminalization of minor offenses, the complexity of the law, a lack of open file discovery practices by prosecutors, and specialty courts.
  • Lack of independence from authorities that provide funding for indigent defense services.
  • Lack of experts, investigators and interpreters.
  • Inadequate access to technology.
  • No meaningful supervision, training or oversight.
  • Lack of timely appointment in cases.

That’s not all. Here’s the next paragraph, which I find particularly disturbing:

So far, we have focused on situations when lawyers are provided for the accused, although sometimes later than they should be. But there is another dimension to the problem, namely, the total absence of counsel because defendants either are not advised or not adequately advised of their right to counsel. When a defendant is not adequately advised of the right to counsel, the waiver almost certainly would not withstand scrutiny as a valid waiver of the right to legal representation. The invalidity of the waiver, however, typically fails to come to light, as the waiver process is of low visibility and defects rarely surface in the appellate courts. There are still some lower courts, moreover, that do not maintain a record of proceedings, so there is no way to be sure exactly how counsel was offered to the accused and if the waiver of legal representation was valid. There also is considerable evidence that, in many parts of the country, prosecutors play a role in negotiating plea arrangements with accused persons who are not represented by counsel and who have not validly waived their right to counsel. Not only are such practices of doubtful ethical propriety, but they also undermine defendants’ right to counsel.

So with this veritable quagmire, what are States to do? How do we fulfill Gideon’s promise? The report has several recommendations, one of which is the use of litigation. But in the end, it all comes down to one thing and one thing only: adequate funding.

Recommendation 1—States should adhere to their obligation to guarantee fair criminal and juvenile proceedings in compliance with constitutional requirements. Accordingly, legislators should appropriate adequate funds so that quality indigent defense services can be provided. Judges should ensure that all waivers of counsel are voluntary, knowing, intelligent, and on the record, and that guilty pleas are not accepted from accused persons absent valid waivers of counsel. Prosecutors should not negotiate plea agreements with accused persons absent valid waivers of counsel and should adhere to their duty to assure that accused persons are advised of their right to a lawyer.

Reading this report makes me realize that even a State like CT, which has a system that is favored with an independent and autonomous public defender’s office, which provides a large amount of funding, still has a long way to go toward fulfilling Gideon’s mandate.

3 thoughts on “Indigent defense is in dire need of reform

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