Overloaded Public Defense Systems Result in More Prison Time, Less Justice - Justice Policy Institute Report

New report from Justice Policy Institute : Public defense systems in U.S. have too many cases, too little time, too few resources

The report identifies 5 ways poor quality public defense increases incarceration

1. more pretrial detention for people who do not need it;
2. increased pressure to plead guilty;
3. wrongful convictions and other errors;
4. excessive and inappropriate sentences that fail to take into account the unique circumstances of the case; and
5. increased barriers to successful reentry into the community.

Recommendations from the report include:

• Integrate a holistic and community-based approach to public defense. Community-based and holistic approaches to defense can help address the root causes of justice system involvement and prevent future involvement by treating the whole client. This can improve public safety, save money on corrections and have a positive impact on people and communities.
• Collect better data and conduct more empirical evaluations on the impact of public defense systems on people, communities and criminal justice. Rigorous research and data collection on all justice policies and practices, but especially public defense, can help policymakers make informed decisions on policies that impact public defense.
• Involve public defenders and affected communities in the policymaking process. As people who are directly involved with the laws and policies in a state or locality, defenders are in the unique position of being able to offer insight on the impact these policies have on people, on their law offices, and on the justice system. As such, defenders should be actively engaged in the policymaking process for criminal justice policies as equal partners in the justice system.
• Actively seek out the voices and perspectives of people who have used defender services to gain a better understanding of the realities of various systems and the implications for people. Nobody knows better the impact of criminal justice policies and practices than people who are involved in the justice system. Involving people directly impacted by the justice system will provide crucial information on making better and more effective and just policies.

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Wall Street Journal on Impact of State Budget Cuts and Indigent Defense

Public Defenders Stretched Thin by State Cuts  Wall Street Journal

States and counties struggling to balance their budgets are cutting spending on public defenders, a move some lawyers say is compromising criminal defendants' constitutional right to counsel.

Providing for that right, enshrined in a 1963 Supreme Court ruling, has grown increasingly expensive amid a dramatic rise in arrests and prosecutions in recent decades.

Spending on indigent defense rose from about $1 billion in 1986 to roughly $5.3 billion in 2008, according to a 2010 report released by the American Bar Association. The increase was partly in response to litigation challenging the adequacy of funding for indigent defense, lawyers said.

The austerity moves stemming from funding constraints these days include laying off public defenders, holding the line on salaries, and reducing spending on the defense's case investigators and staff training.

"The system is not allowing us to provide competent representation," said Edward Monahan, the head of the Kentucky Department of Public Advocacy, which lost about $500,000, or 1.5%, of its funding this year, and faces an additional 2.5% budget cut in the coming fiscal year.

"We are running caseloads in excess of 450 per lawyer....With additional budget cuts to be imposed in [2012] and case assignments continuing to rise, average caseloads will likely exceed 500 new cases per year."

New American Constitution Society Issue Brief on Excessive Public Defender Workloads

American Constitution Society has released another issue brief on this topic. The document is avaiable via this ACS page, and here is a description:

ACS is pleased to distribute “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice,” an Issue Brief by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.

In his Issue Brief, Professor Benner explains how, by focusing on the absence of counsel at a critical stage of proceedings, rather than on the ineffectiveness of counsel, a set of claims could be considered outside of the analysis required by Strickland v. Washington. Strickland’s two-pronged test requires that ineffective assistance of counsel claims demonstrate that counsel’s deficient performance be both professionally unreasonable and prejudicial. As Professor Benner explains, his litigation strategy avoids the prejudice prong:

As Gideon v. Wainwright and its progeny established, the Sixth Amendment guarantees the assistance of counsel at each critical stage of the proceedings against an accused. The strategy outlined here is premised upon the argument that the period between arraignment and trial—the investigatory stage—is a critical stage at which the accused is entitled to counsel’s assistance. In sum, the argument is that because excessive caseloads make it impossible for defense counsel to conduct a reasonable investigation into factual innocence and/or mitigating circumstances relevant to punishment, this inability to provide “core” assistance of counsel renders counsel constructively absent at a critical stage of the proceedings.

The author describes how the aforementioned litigation strategy could be incorporated into the federal government’s response to the indigent defense crisis via legislation such as the Justice for All Reauthorization Act, which would, among other things, create a federal cause of action for equitable and declaratory relief to address patterns of deprivations of Sixth Amendment rights.

Click Here to Download the Issue Brief.