A Fair Fight

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.