New Paper Calls for Reforms, Funding to Put Public Defenders’ Resources on Par with Prosecutors’ Offices

New York, NY – A new paper released today by the Brennan Center for Justice at NYU Law presents public defenders’ lack of resources compared to their opponents in the courtroom and how this imbalance affects their clients and the criminal justice system. A Fair Fight: Achieving Indigent Defense Resource Parity proposes steps that municipalities, states, and the federal government can take to ensure that public defenders can provide adequate legal representation, as guaranteed by the Constitution.   

“Public defenders protect the constitutional rights of millions of Americans, yet as a country, we invest so little in their work that they can’t do the job fully. That has to change if we are going to improve how justice is served,” said Bryan Furst, author of A Fair Fight and formerly the George A. Katz Fellow in the Brennan Center’s Justice Program. “One way to understand our nation’s failure to support public defense is to look at the gulf in funding and other resources between prosecutors’ offices and public defenders, a gap so wide that it can swallow up people’s rights and their freedom.”

A Fair Fight details the financial and structural challenges that contribute to the gap in resources between public defenders and prosecutors, including:

• Lack of investigators and forensics staff: Prosecutors have access to police departments’ resources and forensic labs to conduct investigations. Public defenders typically have little of that kind of support to defend their clients.
• Ineffective organizational structures: Across the country, prosecutors work in offices that are set up in roughly the same way. Public defense lacks a common organizational structure and is delivered in multiple ways, some of them deeply inefficient and detrimental to clients. For example, many jurisdictions assign public defense cases in bulk to the lowest bidder.
• Salary disparity: While some major public defense offices now have salaries on par with prosecutors’ offices, public defenders in many places across the country are earning many thousands of dollars less a year than a prosecutor with the same experience.
• Disparate federal funding: For example, states allocated less than one percent of funding ($1.8 million) available in 2016 from a Justice Department grant program to public defense. Prosecution and court initiatives received $17 million from the program the same year.
• Unsustainable workloads: Public defenders in some states can provide effective legal representation to a fraction of the people in their caseload. For example, it’s estimated that the Rhode Island public defender system has the capacity to handle 36 percent of its caseload, while the system in Louisiana can handle 21 percent of its caseload.

A Fair Fight presents multiple recommendations for reforming and funding public defense, such as funding state-level public defense with general revenue instead of the often erratic funding streams used in some states, setting state-specific workload standards, and passing federal legislation to supplement public defense costs. The author also proposes ways that probation and parole reform can help public defense and suggests requiring prosecutor offices to adopt open discovery rules.

“Conversations around criminal justice reform have recently focused largely on changing police and prosecutor practices,” said Lauren-Brooke Eisen, senior fellow and acting director of the Brennan Center’s Justice Program. “But it is important to ensure that our nation’s indigent defense system is adequately funded for us to better achieve equal justice.”

A Fair Fight: Achieving Indigent Defense Resource Parity is available here. For more information about work from the Brennan Center’s Justice Program, click here.