In its landmark Gideon v. Wainwright ruling in 1963, the Supreme Court recognized that criminal defendants too poor to hire an attorney possess a fundamental Sixth Amendment right to legal counsel, a principle essential to a fair trial. Yet five decades later, in New York state and other areas across the country where public defender offices are chronically underfunded, understaffed, and overworked, effective representation for the poor—to the chagrin of public defenders and those they represent—remains an elusive goal.
Governor Andrew Cuomo pledged upon settling Hurrell-Haring v. New York last year to provide more money for defense lawyers, investigators, and expert witnesses for the five counties involved in the class-action suit. Indigent advocates expect the settlement will produce a positive result for those counties but wide-scale changes remain uncertain in New York, where the average public defender outside New York City handled 680 cases in 2013, according to a report released by the Office of Indigent Legal Services last year.
Bruce Green
New York’s struggles to uphold Gideon are far from uncommon and result from systemic failures involving courts and the justice system, not the failings of public defender offices or individual attorneys, said Fordham Law clinical professors who have served as indigent defenders and taught indigent defense. Similar situations have recently played out in Washington state and Louisiana, where the Orleans Parish Public Defender’s Office informed a judge in December that it would turn away cases this month if the state failed to provide more money.
The entire system is undermined, the professors noted, when an attorney handling hundreds of other misdemeanors and felonies only has time to advise his or her client in a courthouse hallway to take a plea agreement.
“It’s a giant chasm between our professional aspirations and our societal obligations regarding on one hand the quality of criminal defense, and on the other, the reality,” said Bruce Green, Louis Stein Chair of Law and Director of the Stein Center on Law and Ethics. The reason this chasm exists is “largely a funding problem,” he added.
The Supreme Court ruled in Gideon that state and county governments are responsible for public defense, in accordance with the Fourteenth Amendment’s Due Process Clause.
Cumulatively, state governments spent between $2.2 billion and $2.4 billion from 2008 to 2012 on public defense, the Bureau of Justice reported in 2013. The United States spends $80 billion annually to incarcerate 2.3 million people, according to the Brookings Institute’s Hamilton Project.
“Certainly we’re willing to spend a tremendous amount to incarcerate people,” said Fordham Law Professor Cheryl Bader, a former federal prosecutor who has taught a criminal defense clinic for 17 years. “That’s money that could be better spent on improving the system.
“If we want to have a criminal justice system with any amount of integrity, we need to fund it, so that we are confident as a nation that we are complying with the constitutional requirements that are the bedrock of our criminal justice system.”
Indigent defenders are underfunded because they have no constituency and the public perception when they are underfunded is that’s how it should be, explained Fordham Law Professor Ian Weinstein, who has served as an indigent defender in state and federal courts since 1985. He described America’s public defender problems as “a structural defect” that challenges even the best lawyers’ abilities to sustain energy and meet client needs.
The fact many public defenders meet or rise above challenges associated with structural disinvestment and institutional hostility toward public defense is often lost in the discussion, Weinstein said.
State of Disrepair
New York indigent defenders in the 57 counties outside New York City were assigned more than 386,000 new cases in 2013, the Office of Indigent Legal Services reported. Almost 60 percent of those cases were misdemeanors with family court and felonies accounting for the rest. The average indigent defender in New York State handled twice the recommended caseload in 2013, even though the budget rose $9 million to $175 million.
Cheryl Bader
In its Hurrell-Haring settlement, the Cuomo administration pledged to establish caseload standards for attorneys in each county and implement methods to limit caseloads. How these changes will impact justice across the state remains to be seen, Green said, noting the state is at the beginning of a seven-year implementation period. Fordham Law, along with other law schools around the state, submitted an amicus brief in the case supporting the plaintiffs.
New York State is $100 million short of requirements for indigent defenders to satisfy minimum caseload standards, Green noted, citing the Office of Indigent Legal Services report. He pointed out that it’s not clear, in the wake of Hurrell-Haring, whether anyone is researching whether defendants are represented at arraignments or whether the quality of representation is measurably better—two of the lawsuit’s major points of emphasis.
At present, little momentum exists to expand problem-solving measures called for in Hurrell-Haring beyond the five counties involved in the lawsuit, Bader observed.
“The system is very badly broken and applying selective Band-Aids doesn’t give me cause for optimism,” she said.
New York City’s public defense offerings are considered stronger than many others around the state because of the influence of the private bar and other outside legal aid groups, the professors noted. Still, public defenders in the city are not immune from budgetary struggles. In the 1990s then Mayor Rudy Giuliani slashed one-quarter of the budget for the Legal Aid Society, a nonprofit tasked with defending the vast majority of the city’s poor.
The challenges extend beyond money, Bader said. She has observed judges who refuse to dismiss criminal cases when prosecutors fail to file motions on time due to an overwhelming caseload. Meanwhile, those same judges don’t provide the same buffer for public defenders even though the accused has a constitutional right to representation.
“The system has come to accept there are limited resources and that the standard is lowered to match what is available, as opposed to ensuring the resources available match the standards set by the Constitution and Gideon,” Bader said.
“We have all passively accepted a different second-class ethical system for indigent defense,” Green said.
The Big Uneasy
In winter 2006, Weinstein and a group of Fordham Law students participated in a relief trip to New Orleans, still reeling from the effects of Hurricane Katrina. They aided in the release of inmates from jail “just by asking” about ignored inmates, he recalled of the “shocking” experience.
Since then, the Orleans Parish Public Defender’s Office has reorganized and reformed but the challenges that existed in Katrina’s wake remain as present as they were a decade ago. The office represents an estimated 85 percent of felony criminal defendants in New Orleans. A public defender in New Orleans has an estimated seven minutes to spend on a case, according to the American Civil Liberties Union.
“It’s not a failure that just happened this year or when the levees broke,” Weinstein declared. “It’s a structural, endemic failure of government and the justice system.”
Orleans Public Defender Chief Derwyn Bunton testified before an Orleans Parish judge that $700,000 in state budget cuts, local funding shortfalls, and staff attrition unchecked due to hiring freezes have left his office unable to meet its constitutional requirements, the New Orleans Times-Picayune reported in November.
Bader likened Bunton’s decision to tell the court his office could no longer handle all of its assigned cases to “an act of desperation.”
Ian Weinstein
“No public defender wants to say, ‘We are not going take on clients,’” Bader said.
Fordham Law student Mairead Kennelly ’16 worked as a client advocate from 2012 to 2013 in the Orleans Parish Public Defenders Office. “The word we always used was ‘triage’” to describe the situation, she said, noting the office didn’t have the money to hire social workers so she ended up, at age 22, with responsibilities like ensuring inmates had proper medicine, duties that should have been left to someone with more experience.
“It was terrible before,” she said. “I can only imagine how bad it got after I left.”
In New Orleans, Kennelly encountered clients who pleaded guilty to crimes they likely didn’t commit just so they could get out of jail, failing to realize the long-term impact the convictions would have on their records. She also recalled experiences in which a judge would deny an indigent defender to any person able to bail out of jail.
“Once you know, you can’t un-know it,” she said of how the flawed justice system in New Orleans failed people. “You can’t turn your back and walk away.”
The experience convinced Kennelly, who studied English and sociology at Boston College, to attend law school to become a public defender. Today, Kennelly works part-time with the Bronx Freedom Fund and is a founding member of the Fordham Law Defenders, formed in 2015 as a professional development group connecting students with public defenders in the area.
Passion for protecting other people’s rights is key for law students intent on becoming a public defender, professors agreed. They must channel this passion to push beyond the system’s inherent limitations and view every client as being worthy of a zealous advocate’s protection, Bader explained. In clinics, students are on the front lines providing zealous representation, investigating cases, and interviewing and counseling clients.
Reason to Hope?
The Justice Department’s recent move away from mass incarceration policies, greater appreciation for defense lawyers in connection with the Innocence Project, and a small increase in money for indigent defenders has created “a hopeful moment” for public defense, Weinstein said.
Indigent defenders’ caseloads are affected by police and prosecutors’ practices and policies, particularly their decisions regarding when to make an arrest and bring a prosecution, Green noted. The move to decriminalize some low-level misdemeanor crimes such as marijuana possession, as civil liberties unions have called for, or shift them to fineable offenses would provide benefits both to the criminal justice system and citizens.
Decriminalizing certain misdemeanors would make young lawyers feel less like they’re working on a “processing line,” according to Kennelly.
Kennelly also vouched for equal funding. In New Orleans, parish government provides the district attorney $6 million, or four times the amount it provides the public defender’s office.
Alternatives to not only incarceration but also how criminal cases are processed must be explored in relation to public defense, in order to ensure a system that builds up individuals and communities, Bader said.
“We need to look at this holistically, globally, and creatively,” Bader said.
–Ray Legendre
