Paper Title

• Why doesn't this essay have a title?

-- By ErandiZamora - 28 May 2009

Introduction

Justice comes with a price tag, and unfortunately it is not affordable to all. In the Gideon decision of 1963, the U.S. Supreme Court held that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys or lawyers. However, the Court did not mandate how the public defender system should be created, or funded. The result has been that public defense systems across the country are inadequately funded, public defense attorneys are overburdened, and the people’s constitutional right to counsel is only superficially respected.

• Putting citations in text is disruptive, and blunts the whole point of being on the Web. You should adopt the style of linking above.

Funding Public Defense Systems

The Gideon decision mandates that states are to provide legal defense for individuals who are accused of a crime and cannot afford a lawyer.

• *No*. That's the second time in two paragraphs you've misstated the law. Gideon held that states must pay appointed counsel when persons are charged with felony offenses. Required legal assistance for indigent persons charged with misdemeanor offenses involving possible loss of liberty was not required until Argersinger v. Hamlin , 407 U.S. 25 (1972). The rule you state in the text still does not exist. .

The Court, however, did not establish a funding requirement to fulfill the mandate. Twenty-eight states currently provide at least ninety percent of the funding for their public defense, with the remaining ten percent provided by the counties. On the other extreme, two states require their counties to fully fund their public defense. Of the remaining twenty states, six provide more than fifty percent of the funding in their state and sixteen states require their counties to provide more than fifty percent. Problems of funding are present in all systems. States often underfund public defense systems because of budgetary problems, and requiring counties to provide funding results in inequities among the local systems. Justice Denied.

• Is there reason to believe, however, that the constitutional requirement somehow prevents the use of local property taxes to fund this aspect of state government because there may well be horizontal inequalities among counties? Counties use property taxes to fund police, and jails, too. What the county's tax base is like affects many public services. And underfunding results not from the sources of funds, but from the public view that paying for "criminals' lawyers" isn't a high public priority. In a generally libertarian democracy, that's likely to be the situation, isn't it?

Although public defense systems are commonly underfunded, the current economic climate will most likely deepen the financial problems. Some states, like Maryland, where most of the funding is provided by the state, have considerably reduced funding for support staff and now require that counties provide funding for “conflict of interest cases” which can’t be handled by pubic defenders and are contracted out to private attorneys. Justice Denied. States with county funding are also suffering. As a result, resources and positions are slashed and, even private attorneys contracted to provide public defense services, are abandoning their clients as they see the ever-growing pile of unpaid legal counsel bills. In Georgia, Lawyers Abandoning the Poor.

A Daunting Caseload and Unfulfilled Intentions

Public defenders who once intended to represent underserved communities see their dreams crumble under enormous caseloads and high job pressure. In New York, Legal Aid Society criminal defense attorneys handle an average of five hundred ninety-two cases per year, or about one hundred and three cases at a time. With such large caseloads, the attorneys are forced to choose between their clients and little time is left for vital litigation procedures. As stated by a previous criminal defense attorney now working in private practice, the work becomes impossible and the clients suffer enormously. State Law to Cap Public Defenders’ Caseloads, but Only in the City. Even assuming that all judicial decisions are free of bias, justice is not served when due to inadequate time and resources, public defense attorneys cannot prepare an appropriate defense for their clients. Working under such grim conditions, eventually undermines the attorneys’ morale and pushes many to abandon their practice area. As attorneys leave public defense, their workload of other attorneys increases even more and clients continue suffering the consequences of a failed system.

Defense versus Prosecution

The problem of public defense is aggravated by the disparity of funds between public defense and prosecution. Studies show that across the country, even accounting for the fact that prosecutors handle more cases, financial support of public defense is typically lower than that of prosecutors. Justice Denied. In Sedgwick County, Kansas, the difference in pay is thirty-three percent. Public Lawyers’ Salary Gap Grows Wider. However, the problem goes far beyond the difference in salaries. Funding disparities affect the amount of resources, training, technology available, support staff, and of course, the number of attorneys on staff. These disparities, in turn, diminish the quality of representation received by each client and create circumstances that favor of the prosecution over the defense.

• But are these disparities greater than the disparity in the public's estimation of the value they receive from expenditures on prosecutors and on public defenders? I would guess that the public view of the gap in value provided is far greater than the disparity in spending. In other words, democracy demands at least as much inequality as it gets now, so the constitutional minimum is what a democracy will choose to spend. What's the constitutional minimum? It's a question that seems logically and politically relevant, but you're not coming close to thinking about answering it.

Possible Solutions

In the big picture, social values need to change, but not merely to provide more funding for criminal defense. Funding more public criminal defense would be a band-aid to a bigger societal problem, which involves the criminalization of youth, the lack of options in poor communities and the inability of the justice system to address the underlying causes of crime. However, as we work toward the larger goal of overall crime reduction, we need to also make criminal defense of the poor an important societal goal.

• You and I may agree that these are important public goals, but they aren't close to having the kind of public support that would be necessary to treat them as such. You haven't suggested how we are going to change the contour of public opinion as radically as would be required, and as far as I know, no one knows how.

Sweeping changes are needed in public defense systems across the nation. Leaving the funding schemes and the quality of representation to each state’s discretion has resulted in great disparities and financial shortcomings for public defense systems. Consequently, the people’s sixth amendment right to counsel in criminal cases has not been fully respected. Legislative action in the states is critically needed. One of the solutions is to cap the number of criminal cases assigned to each attorney, as will soon be the case in New York City. An April 5, 2009 New York Times article discusses the struggles faced by New York Legal Aid attorneys as their caseloads grow out of control. Across the nation, some have criticized the blanket cap, but others, including a prior Legal Aid attorney, think that caseload caps are very necessary. State Law to Cap Public Defenders’ Caseloads, but Only in the City. The caps will undoubtedly ease the plight of the public defense attorneys, but unless public defense is recognized as an important state interest, the plight of the clients will continue.

• Continue, or grow worse? If caps actually affect how much work public defenders do, unless someone else does the work they have been doing above the caps, that work will go undone.

• In the end, isn't this draft based around the idea of holding injustice unconstitutional? Probably I am not the only reader who expects things to be a little more complicated. The most valuable editorial revision, it seems to me, is one that adds political realism to the mix.