Public Defense Reform–Is the Money Available?

The National Legal Aid & Defender Association, and the American University   

In Gideon v. Wainwright,2 the United States Supreme Court established the right to counsel for indigent persons accused of committing felony offenses in violation of state law. That mandate has been consistently extended to any case that may result in a potential loss of liberty, including but not limited to: initial appeals in state appellate court, juvenile delinquency proceedings, and misdemeanor cases punishable by an actual or suspended jail sentence.   

Despite the Gideon Court holding that the Sixth Amendment right to counsel applied to the states by virtue of the Fourteenth Amendment—not to county or local governments—the majority of states delegate their obligation to provide counsel for the poor to their counties. Though passing state obligations onto local government can lead to innovation, this has not proven to be the case with public defense services. Rather, the states’ abdication of their constitutional obligations has produced justice systems in which results are dictated by a person’s income level and the jurisdiction in which the crime is alleged to have been committed, rather than the factual merits of the case. State laws will vary, but a defendant’s right to counsel must be uninhibited and absolute or justice cannot prevail.   

On September 16, 2008, the National Legal Aid & Defender Association (NLADA), in collaboration with American University’s Justice Programs Office of the School of Public Affairs, and pursuant to a grant from the U.S. Department of Justice’s Bureau of Justice Assistance (BJA), convened a focus group meeting of criminal justice leaders, including state and local public defenders, state and local assigned counsel leadership, prosecutors, judges, social workers, client leaders, academicians, and former directors of NLADA’s Defender Legal Services division. During the meeting, the focus group heard presentations from national experts, reviewed the progress and setbacks in our nation’s effort to deliver public defense services, assessed the lessons learned through these successes and failures, identified best practices, and began “succession planning” from the current generation of indigent defense leadership to the next.   

The recommendations that resulted from the focus group discussions, summarized in Part V: “Recommended Action Steps for Change” of this report, are organized in terms the actions needed by all levels of government and private sector leadership, including:   

1. The United States Government, particularly the U.S. Department of Justice’s Bureau of Justice Assistance;
2. The Defense community;
3. State policy makers, including state supreme courts, state legislatures, and public defense leadership; and
4. National and local advocacy organizations, government agencies and academic institutions.

The recommendations span a broad range of initiatives designed to ensure that:   

1. public defense is an essential component of all criminal justice improvement and training initiatives and that public defense providers are, through regulation, designated as equal partners in terms of eligibility for federal and state grants;
2. the implications for public defense are a significant consideration in the introduction of various “tough on crime” legislative proposals, including the reclassification of offenses as crimes that were formerly infractions;
3. special attention is given to the delivery of defender services to juveniles that take into account the mental health, educational, medical and other needs of these clients, including those being tried in the adult system;
4. adequate broad based training and technical assistance opportunities are available for public defense and criminal justice systems which promote the development of requisite leadership and management skills, competent and professional representation, and a court system culture that supports and encourages such representation as an indispensable element of a well-run and fair criminal justice system; and
5. state legislatures and other funding bodies provide adequate funding for public defense services that meet workload demands, acknowledge the ethical obligation of attorneys to provide competent representation to each client, and allow for parity of resources with those of the prosecutor for attorneys as well as necessary support (investigators, training experts, etc.).

The recommendations also call for (a) a systematic review of case processing in state and local courts to identify the extent to which defendants are convicted in the U.S. without access to counsel in violation of the Sixth Amendment and the different mechanisms that allow this deprivation to take place, and (b) the creation of independent statewide indigent defense commissions with authority to promulgate and enforce uniform standards for defense services at the state and local level.   

Source: http://www.ojp.usdoj.gov/BJA/pdf/NLADA_PubDefLeadership.pdf