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A Fair Fight

Summary: Indigent defense systems across the country have been chronically under-resourced for decades, leading to a broken justice system and high social and economic harm for citizens.

  • Bryan Furst
Published: September 9, 2019

Shondel Church spent over 40 days in a Missouri jail — accused of steal­ing a gener­ator and tool­box — before even seeing his public defender. His lawyer thought they could win the case but explained that his high case­load would prevent them from going to trial for four to six months. Church sat in jail for 125 days, for which Missouri charged him $2,600, before plead­ing guilty in order to return to his life and family. While Missouri is among the worst examples, indi­gent defense systems across the coun­try have been chron­ic­ally under-resourced for decades.

Spend­ing tax dollars on indi­gent defense has long been unpop­u­lar. Shortly after the Supreme Court ruled in 1963 in Gideon v. Wain­wright that indi­gent people accused of crimes are entitled to a lawyer, public senti­ment for being “tough on crime” skyrock­eted and persisted well into the 1990s. As a result, today’s systems of indi­gent defense developed in an era of mass incar­cer­a­tion that is histor­ic­ally unpre­ced­en­ted. It is not surpris­ing that many of these systems remain in crisis today.

Indeed, a half century after the Supreme Court’s land­mark ruling, the Bren­nan Center posited in a report, Gideon at 50: Three Reforms to Revive the Right to Coun­sel, that the right to coun­sel has never been broadly real­ized in this coun­try. This remains just as true today, with one key differ­ence: crim­inal justice reform is now seeing broader public support than ever before.

Many of the issues that affect our crim­inal justice system today — overly long sentences, racial bias, wrong­ful convic­tions — are exacer­bated by over­whelmed indi­gent defense systems. In this moment of bipar­tisan support for reform, creat­ing resource parity between prosec­utors and indi­gent defend­ers could help achieve trans­form­at­ive change and lend needed cred­ib­il­ity to our crim­inal justice system.

The Supreme Court has observed that the “very premise of our adversary system of crim­inal justice is that partisan advocacy on both sides of a case will best promote the ulti­mate object­ive that the guilty be convicted and the inno­cent go free.” Whenever adequate defense coun­sel is lack­ing, however, “a seri­ous risk of injustice infects the trial itself.”

And the infec­tion appears wide­spread. Until recently in New Orleans, single public defend­ers were forced to handle upward of 19,000 misde­meanor cases in a year — trans­lat­ing into seven minutes per client. Research has shown that only 27 percent of county-based and 21 percent of state-based public defender offices have enough attor­neys to adequately handle their case­loads.

A func­tion­ing adversarial legal system requires two adequately resourced oppos­ing sides. But Amer­ican prosec­utors, while some­times under-resourced them­selves, are the most power­ful actors in the U.S. legal system. In addi­tion to better fund­ing, there are numer­ous struc­tural advant­ages a prosec­utor holds that worsen the resource dispar­ity. For example, harsh mandat­ory minim­ums and wide­spread pretrial incar­cer­a­tion create condi­tions in which people have essen­tially no choice but to accept whatever plea deal the prosec­utor offers.

Histor­ic­ally, improv­ing the resource dispar­ity for defend­ers has been polit­ic­ally diffi­cult because of the cost and the fear of look­ing “soft on crime.” This might not be as true today, when 71 percent of voters think it is import­ant to reduce the prison popu­la­tion and 66 percent support the use of govern­ment tax dollars to provide indi­gent defense.

In addi­tion, the fiscal costs of indi­gent defense reform are not nearly as high when one accounts for the savings it can bring. Issues exacer­bated by defender resource dispar­ity — pretrial incar­cer­a­tion, overly long sentences, wrong­ful convic­tions — are extremely expens­ive. The Prison Policy Initi­at­ive estim­ates that the United States spends $80.7 billion on correc­tions each year, while pretrial deten­tion alone costs $13.6 billion. From 1991 to 2016, Texas paid out over $93 million to wrong­fully convicted people.

Provid­ing better indi­gent defense does not always mean spend­ing more money. State indi­gent defense systems are often struc­tured in extremely inef­fi­cient ways that cost states more than neces­sary and lead to worse outcomes for people accused of crimes. Restruc­tur­ing for those juris­dic­tions may require an up-front invest­ment but can lead to savings in the long term.

At the heart of defender resource dispar­ity is the chronic under­fund­ing of indi­gent defense — a phenomenon that is wide­spread and well-docu­mented. But fixing the prob­lem will require more than simply increas­ing fund­ing, and the ques­tion demands think­ing broadly about the many issues that drive it. This report iden­ti­fies five key chal­lenges that contrib­ute to defender resource dispar­ity:

  • Improp­erly struc­tured indi­gent defense systems
  • Unsus­tain­able work­loads
  • Defender-prosec­utor salary dispar­ity
  • Insuf­fi­cient support staff
  • Dispar­ate federal fund­ing as compared to law enforce­ment

Many of the solu­tions presen­ted in this analysis will improve resource parity, requir­ing increased up-front spend­ing. Some will produce savings in the long term through cost shar­ing between indi­gent defense offices or reduced levels of incar­cer­a­tion, while others, such as mandat­ing open discov­ery, will cost almost noth­ing to imple­ment.

This analysis iden­ti­fies vari­ous char­ac­ter­ist­ics of the justice systems that contrib­ute to defender resource dispar­ity and presents solu­tions to move toward parity. It seeks to build upon and elev­ate the work of many others in the multi-decade effort to real­ize the right to coun­sel in this coun­try — one of many neces­sary reforms required to dismantle the systems of mass incar­cer­a­tion.