Providing Access to Effective Counsel a Tall Order to Fill in the Midst of Budget Woes

Written By Heather Baxter

In considering this month’s theme of Access to Justice, I’m not sure anything could be more appropriate than discussing the Right to Counsel afforded to all indigent criminal defendants.  Nearly fifty years ago, the United States Supreme Court found that having an attorney to represent a defendant was fundamental to a fair trial.  This right was so important, according to the Court, that all states should be required to provide an attorney, free of charge, to those who couldn’t afford one.  I’m talking, of course, about the famous case of Gideon v. Wainwright, a 1963 Supreme Court case that changed the landscape of criminal courts forever.

Unfortunately, Gideon was a tall order to fill when it was announced, and recent budgetary crises have only made the situation worse. Even though the Court proclaimed the importance of the right to counsel fifty years ago, providing counsel to those accused of a crime is certainly not at the top of many legislators’ priority lists.  As a result, many of those who represent the indigent have seen their budgets slashed.  For example, in Georgia’s Northern Judicial Circuit, which comprises five counties, the conflict counsel’s budget was reduced from $129,166.00 to a mere $37,152.00 in 2009, a more than 70% decrease in funding.  Further, the budget cuts in Georgia forced the Georgia Public Defender Standards Council to lay off forty-one employees. In Kentucky, the legislature cut $2.3 million from the indigent defense budget in 2008, and in Minnesota, the legislature cut $4 million from the Board of Public Defense’s Budget in 2009.

These recent budget cuts have forced many public defenders to take on much bigger caseloads than are manageable. The National Advisory Commission on Criminal Justice Standards and Goals has stated that the maximum caseload for trial level public defenders should be no more than 150 felony cases per year, 200 juvenile cases per year, or 400 misdemeanor cases per year. In a 2007 study, the Department of Justice found that more than sixty percent of state public defense programs and county offices “exceeded the nationally recommended felony caseload standard.”

To point out some specific examples of high caseloads around the country, attorneys who work for the Department of Public Advocacy in Kentucky are facing caseloads close to forty percent above the national standards. Those defending misdemeanor cases are particularly hard hit.  The National Association of Criminal Defense published a report showing that the number of misdemeanor cases has increased from 5 million cases in 1972, to over 10.2 million in 2006, while the number of public defense attorneys overall has decreased.  More recently, Missouri’s public defenders even requested permission to refuse new cases because their attorneys were so overworked.  These exorbitantly high caseloads make it nearly impossible to provide effective assistance of counsel to clients.

A question remains, however, as to what remedy can be employed today, in a time when the economy is worse than ever.  Some critics would say, after all, that these are criminals.  Why should we afford them protection when schools are losing teachers and policemen and firefighters are losing their jobs?  Why should those accused of crime be a top concern?

One of the most obvious reasons is that the Constitution says so.  Gideon and its progeny mandate that all indigent defendants be provided effective counsel, and numerous studies show that many are not being provided with this fundamental constitutional right.

Further, our system is based on the belief that all defendants are innocent before proven guilty.  In fact, more and more evidence surfaces every day to show us that the system convicts innocent people more often than we are aware.  The crisis in funding for public defenders is likely to exacerbate this problem.   If a public defender has only hours to work on the entirety of a case, how is he to distinguish those clients who are truly innocent from those who merely claim they are?

Finally, providing competent counsel to indigent defendants could actually save the states much needed resources.  It is possible that fewer ineffective assistance of counsel claims would be filed, freeing up time for prosecutors to focus on prosecuting crime, and there would likely be fewer appeals.  Further, defendants would likely receive lighter sentences if their defenses were actually investigated and handled correctly, instead of being shuffled off to jail on plea agreements.  In turn, this would serve as a reduction in the states’ burden of housing these prisoners in jail.

To truly provide meaningful access to justice for the indigent, the criminal justice system needs to undergo fundamental reform.  The time has come to abandon the tough on crime attitude that forces states to pay for the incarceration of many drug addicts who would be better served in treatment.  Each state should also review its overburdened misdemeanor system to determine if there are crimes on the books that could be reduced to fine-only offenses, similar to what has been accomplished in Hawaii.  Further, states should implore more prosecutorial discretion in charging crimes instead of following a “throw it at the wall and see what sticks” mentality that has plagued prosecutors’ offices for decades.  In a way, the economy may be a blessing in disguise, forcing us to make big changes in how we prosecute crime—changes we may not have chosen to undertake without facing such financial dire straits.