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America Incarcerated

Our Right to an Attorney Is in Jeopardy

Many public defenders in the United States only have minutes to prepare for a case that might result in years in prison for the accused, as well as the loss of benefits, employment, or custody of their children.

by Max Rivlin-Nadler
Oct 5 2015, 4:00am

Photo via Flickr user Beth Cortez-Neavel

In the American criminal justice system, getting a court-appointed lawyer often isn't much better than just throwing yourself at the mercy of the prosecution. That's because the funding for the lawyers who defend the poor has reached such dire levels that the federal government has decided to intervene.

Last month, the Department of Justice (DOJ) suggested that at least one state may be in violation of the Constitution for failing to provide enough money for the legal defense of the indigent. The feds filed a brief in support of criminal defendants who, in suing Pennsylvania for denial of counsel, claim conditions are so bad that even though a lawyer "may technically be appointed to represent them, they will be constructively denied their right to counsel."

In other words, just appointing a defense lawyer doesn't mean that a poor person will receive actual legal help.

And the Pennsylvania suit is just one of many across the country that are alleging gross violations of the civil rights for poor adults accused of committing crimes by local authorities. Following years of budget cuts by austerity-minded lawmakers at the state and county level, America is just now coming to grips with a dysfunctional criminal justice system that gives many public defenders only minutes to prepare for a case that might result in years in prison for the accused, as well as the loss of benefits, employment, or custody of their children. The situation is especially bad in cities that have large numbers of people of color. One recent study found that in Atlanta, an attorney only had, on average, an estimated 59 minutes to work on a case, while in Detroit it was just 32 minutes, and in New Orleans, only seven minutes.

Across America, defendants are taking plea deals just to avoid waiting in jail for months before trial while their life crumbles around them, and relying on overworked and underpaid lawyers to help guide them through a terrible process. The public defense offices that are supposed to provide counsel to the country's poorest in their time of absolute need, are, in fact, struggling to survive themselves.

"It's very difficult to meet the expectations we have for dealing with our clients," said Derwyn Bunton, chief defender for his district in New Orleans, Louisiana. "We can't hire investigators or even have the support staff we really need. From hiring decisions, to promotions, to just running our office, the budget constraints have made things incredibly difficult for us."

Orleans Public Defenders—the non-profit tasked with providing legal defense for the indigent in that city—recently launched a crowdfunding campaign to address a massive budget shortfall. The paucity of funding can lead to larger caseloads for defenders, less money to hire investigators and experts, and the general slowing of an already overburdened criminal justice system. And, of course, there are also devastating consequences for New Orleans residents arrested for crimes that might range from marijuana possession to murder, consequences made much worse because of Louisiana's incredibly harsh sentencing guidelines.

"We don't have the ability to work on any broader issues," Lindsey Hortenstine, the communications director of OPD, told VICE. "Things like making sure people can maintain their homes, keep their families together, keep their kids in school, keep their jobs, all of these things that we would normally help a client with."

The right to an adequate defense is the very bedrock of the American criminal justice system, which operates under a pretty simple adversarial premise: A prosecutor argues why a defendant should be punished by the state for an alleged crime while a defense attorney attempts to exonerate their client, or at least provide enough reasonable doubt to avoid a guilty verdict.

And while the Sixth Amendment to the Constitution provides the right to counsel during trials, the provision of a public defender still wasn't fully guaranteed until 1963, when the Supreme Court decision Gideon v. Wainwright established that government must provide criminal defense counsel for those who cannot afford one. Since then, it's been a struggle for many public defender offices to receive adequate funding from state and county governments. Because even if the government guarantees a defense for the indigent, it doesn't specify exactly how to pay for it.

That leaves a number of public defense offices at the whims of state legislators focused on trimming budgets and punishing the bad guys.

"I think the current system is tilted in favor of the defendant," Tennessee State Senator Randy McNally told VICE. "There was a brutal kidnapping, rape, and torture of a couple a few years back, and we had to pay for the defense of these monsters."

The existing law in Tennessee says that local spending on public defense should be at least 75 percent of what's allocated for prosecution. McNally proposed a bill that would strike this down.

"Spending on public defense is way too much," McNally says. "Public defense spending has increased threefold over the past 20 years, and we're just not seeing increases like that in education, public safety, and so on."

McNally's bill, which was supported by the Tennessee Public Safety Coalition (police chiefs, sheriffs and prosecutors) was defeated by the State Senate, which apparently didn't share McNally's view that the defense offices were being funded too much.

The parity law remains on the books in Tennessee, but other states have relied on less formal funding mechanisms for their public defenders, resulting in huge shortfalls. In Louisiana, for example, local funding for defenders is based on traffic ticket fines or forfeited bail bonds. Other states, like Florida, fund their court system through fees imposed on arrestees, including an amount you're supposed to pay the court for being provided a public defender.


States often push the funding obligation onto counties or municipalities, both of which draw from smaller tax-bases to begin with. The American Civil Liberties Union (ACLU) is suing the state of Idaho because, they say, counties don't even bother to spend on public defense, leading to defendants going before a judge for a bail hearing, or even pleading guilty, all without a lawyer present.


"The state was not providing any funding or resources for trial-level defense for people who needed a public defender," Jason Williamson of the ACLU's Criminal Law Reform Project told VICE. The ACLU believes the Idaho system to be unconstitutional.

"There are 44 counties in Idaho, and as a result of this system, there were 44 iterations of what public defense looked like in that state," Williamson said. "All of them, according to a report by the National Legal Aid & Defender Association, were found to be unconstitutional. We hoped that this was going to spur the state to take action, but that was not to happen."


Check out our HBO documentary about the criminal justice system and President Obama's historic visit to a federal prison.


Last year, the ACLU and others won a settlement against the state of New York, resulting in major changes to the state's public defender system, and ensuring that the state, which now has a budget surplus, adequately fund indigent defense. But the difference in quality of public defense doesn't only differ state by state, but county by county. In 2013, following a lawsuit from the ACLU, a federal court found that the towns of Mt. Vernon and Burlington in Washington were in violation of the Constitution, going so far as to install a monitor to make sure that the towns remain in compliance. In addition to the pending suit in Idaho, the ACLU tells VICE that is has ongoing lawsuits alleging constitutional violations in Fresno, California, among other places.

The success of lawsuits alleging inadequate counsel, as well as the DOJ's newfound activism on the matter, might finally press states to adequately fund defender services. After a government-commissioned report found Michigan's public defense system to be in disarray in 2012, the legislature created statewide standards that every county had to observe. Now, if a county can't come up with the money necessary to provide adequate counsel, the state is supposed to put up the funding.

"I think the DOJ is going to continue to ramp up involvement with state-level cases. The forceful language they used in the brief they filed is a clarion call for states to get their houses in order," said David Carroll, executive director of the Sixth Amendment Center, a nonprofit that measures the effectiveness of public defender offices nationwide. "Right now, only a very small portion of states actually meet their constitutional obligations in regards to public defense."

Whether the fight against the states will continue piecemeal, or be settled on a national stage, remains unclear.

"I do think that one of these cases does eventually get to the Supreme Court," Caroll said.

For now, defender offices like the Orleans Public Defenders still have to contend with shrinking budgets and heavy caseloads. And if the public defenders are in this much trouble, it's safe to say America's most vulnerable defendants are in a bad way, too.

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