The Growing Public Defender Crisis

The New York Times is spotlighting the issue here, but the problem is hardly new.  There have been numerous stories over the last couple of years (see here, here, and here) concerning the woefully inadequate resources in many public defender offices.

Unfortunately, with drastic budget cuts looming in many states, this problem is going to get worse before it gets better.  Numerous commentators, including co-blogger Monroe Freedman (update: article download here), have argued that public defenders should refuse to take on new cases if their workloads prevent them from providing competent representation.  I suspect that work-stoppages, strikes, and other forms of protest are, in fact, going to increase.  (Here's an article that reviews some recent examples and offers strategic advice for public defenders going forward.)  The picture is not pretty, and it's about to get uglier.

Comments

[John Steele]

PDs have for some time been pushing this issue. It would be interesting if they felt so strongly that they pulled some sort of work slow down nationwide. I've heard stories of PDs having several hundreds of cases.

[Monroe Freedman]

The citation to my article is, "An Ethical Manifesto for Public Defenders," 39 Valparaiso L. Rev. 911 (2005). It provides references to the ethical obligations of defenders to resist, and how to do it, at each step of the representation, from assignment and appointment to plea bargain. Those obligations include the ethical duty to report the PD supervisor and the judge to the appropriate disciplinary authorities.

The article also includes a confession of complicity. For fifty years, I have urged bright, conscientious students to go into public defender offices, despite my knowing that they would be compelled to engage in unethical conduct, including incompetent representation, and to cover up wholesale violations of the Sixth Amendment.

[Andrew Perlman]

Thanks, Monroe. By clicking on Monroe's name in the main post, you'll be taken to his article on SSRN.

[Patrick S. O'Donnell]

We're only taken to the abstract of the article, and I've not been able to locate it anywhere in cyberspace (there may be of course restricted access to it, in which case I won't be able to read it).

[Andrew Perlman]

Monroe,

Is there any chance that you can have someone at Hofstra upload the full text of your article on SSRN? I could also make it available on the blog if you send me an electronic copy.

[Andrew Perlman]

The article is available at the Valparaiso Law Review web site here: http://valpolawreview.org/content/archives/vol39/no4_sum2005/Freedman_Final.pdf

[Patrick S. O'Donnell]

Professors Perlman and Monroe: Thanks!

I will do whatever I can (that's rather modest mind you) to help publicize this issue and will offer whatever support I can to actions public defenders deem necessary to upholding this constitutional right (at least since Gideon v. Wainwright, 372 U.S. 335 (1963); Justice Black reminded us back then that the Court was 'returning to...old precedents, sounder we believe than the new' [e.g., Powell v. Alabama (1932) and Johnson v. Zerbst (1938)]) to competent/effective representation. I trust others will do likewise.

[Andrew Perlman]

Patrick,

Thanks for offering to help. The dynamics are quite complicated and difficult to resolve, but it certainly can't hurt to bring more attention to the problem.

[Patrick S. O'Donnell]

With all due respect Andrew, that "the dynamics are quite complicated and difficult to resolve," perhaps goes without saying, but that in no way excuses the appalling lack of attention and resources devoted to this problem. I happen to believe it's reflective of our society's ongoing failure to recognize the salience of class issues, be it in medicine and public health or (cf. Paul Farmer's books, but especially Pathologies of Power: Health, Human Rights and the New War on the Poor, 2003; and see here: http://www.medhumanities.org/2008/06/on-income-inequ.html#comments), as here, in criminal law and punishment (on the latter, cf. Sasha Abramsky's American Furies: Crime, Pubnishment, and Vengeance in the Age of Mass Imprisonment, 2007). It's a failure of (political) will more than anything else, and I suspect it's such a failure that often makes matters appear far more complicated and difficult to resolve than they would otherwise be.

[Andrew Perlman]

Fair enough, Patrick. Perhaps I'm being unnecessarily pessimistic. I think the issue certainly deserves as much attention as we can give it (thus my frequent posts about the issue).

My concern is that attention by itself will not lead to much action. Politicians generally don't want to appear soft on crime, so they're usually not particularly eager to support dramatic increases in funding for public defender offices. The federal courts are not going to do much, given the current make up of the Supreme Court. The public is not going to get too interested in the issue when state budget cuts are going to lead to reduced funding for essential services.

All of this is not in any way to excuse or justify the continued failure to act, but these forces make me cynical about the likelihood of much action, even if we continue to point out the problem (which we should).

Ultimately, I think the issue will only get addressed if (as Monroe Freedman suggests in his article) public defenders refuse to take additional cases when they know that they are not in a position to provide ethical representation. As with many other difficult issues, there is only action when there is a crisis, and the refusal to take additional cases will produce such a crisis.

In any event, thanks for the comment.

[Patrick S. O'Donnell]

In his lecture article Monroe cites Anthony Lewis's "masterful book," Gideon's Trumpet (1964). While I knew of this book I had never, until now, read it. Yesterday I was browsing in our town's best used bookstore: lo and behold there was Gideon's Trumpet on the shelves and I eagerly picked it up (I confess to being even more excited about finding a first edition hardbound copy of Kenneth Rexroth's translation of Japanese poetry). I subscribe to Monroe's assessment and, for what it's worth, want to recommend Lewis's book to others who've yet to read it. Lewis manages to cover a lot of legal territory and history (and not just criminal law: for instance, judicial process is well described) in quite an engaging and accessible narrative (i.e., especially for the legal layperson like me). Reading this story only sharpens the pain and anger upon learning that the Sixth Amendment's right to Assistance of Counsel (along with the notion that the Bill of Rights are 'incorporated' into the Fourteenth Amendment) are, in Monroe's words, "too often betrayed by courtroom realities."

[Patrick S. O'Donnell]

I had a conversation with a sociology professor today who does a lot of work (counseling, for example) with local jail inmates and we discussed the question of effective counsel as she has an "insider's" take on the system. She told me of absolutely "5 minute" routine plea bargaining by indigent defendants (often homeless, alcoholics, addicts, etc.) and the fact that her clients and others have long called our county's Public Defender Office the "Public Pretenders Office!"

[Patrick S. O'Donnell]

I should have mentioned that the "5 minute" practice sounds identical to the "meet 'em and greet 'em and plead 'em" practice mentioned in the Buskey article with regard to the St. Louis Public Defender's Office in 2005.

[free sample last will and testament]

Hi,

The state public defender’s office, already reeling from 53 layoffs this year, could be in further danger if state budget cuts whack the justice system. Kunkel, who has been with the PD’s office for three-and-a-half years, could be laid off.