History of the Problem
The Constitution affords people charged with crimes due process, the presumption of innocence, and equal access to a fair day in court. The Founders understood the danger of a powerful government exercising arbitrary control over the freedom of the People through mechanisms of the justice system and criminal law. For this reason, the Sixth Amendment guarantees, among other fundamental rights, that “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence [sic].” Although the Sixth Amendment’s right to counsel provision was originally interpreted to apply only in federal prosecutions, in the twentieth century the Supreme Court interpreted the due process clause of the Fourteenth Amendment to also apply the Sixth Amendment right to counsel in state prosecutions.
In the 1932 case Powell v. Alabama, the Supreme Court held that defendants in capital cases, even at the state level, were entitled to due process, including the right to counsel.4 Justice Sutherland wrote in his majority opinion that the right to counsel is among the “immutable principles of justice which inhere in the very idea of free government…”5 In 1963, the Supreme Court issued the landmark decision Gideon v. Wainwright, holding that states are required to provide representation for defendants who cannot afford private counsel in felony cases. Since then, the right to counsel has been consistently extended to any case that may result in a person’s potential loss of liberty.6
In addition to a basic right to counsel, a defendant in a criminal case has a right to “effective assistance of counsel” under the Supreme Court’s decision in Strickland v. Washington.7 In practice, courts have set a very low standard for effective assistance of counsel,8 and it is difficult for defendants to meet the Supreme Court’s demand that they affirmatively prove that their attorney’s errors were “so serious” that her or his performance fell below an “objective standard of reasonableness.” Under the Strickland standard, defendants are also required to affirmatively prove that the result of the proceeding would have been different with more effective counsel.9 These nearly insurmountable standards have undermined the right to effective counsel necessary for our adversarial system of justice to operate properly.
Indigent Defense Systems
The method by which a government provides indigent defense services varies by jurisdiction. At the federal level, public defenders are provided in two ways: federal public defender organizations and community defender organizations.10 In the first system, a federal defender is appointed to a four-year term by the court of appeals for the district in which he or she serves, and the staff in his or her office are federal employees. In a community defender system, non-profit entities incorporated under state law operate with grants from the federal judiciary and are supervised by a board of directors or a local legal services organization. Funding for federal indigent defense is authorized by the Criminal Justice Act of 1964.11
At the state level, indigent defense is usually provided in one of three ways.12 First, many populous jurisdictions have a local office of the public defender staffed by government employees which handles almost all indigent defense in the jurisdiction. Second, some jurisdictions contract with private firms or individual attorneys to represent indigent defendants or a particular class of indigent defendants for a fixed fee. Third, many jurisdictions use an “assigned counsel” model in which the court assigns attorneys to indigent defendants on a case-by-case basis. Funding is provided by the state, the county, and, sometimes, by federal grant programs administered by the Bureau of Justice Assistance within the Department of Justice (DOJ).13
The Executive and Indigent Defense
The executive branch has a special responsibility to enforce the federal mandate announced in Gideon v. Wainwright and is uniquely situated to pursue indigent defense reform. Not only are federal defenders employees of the executive branch, but DOJ also directly assists state and local indigent defense systems with federal grant funding. Within DOJ, the Office of Justice Programs administers the Edward Byrne Memorial Justice Assistance Grant program (Byrne JAG). This program is the largest single federal grant program for funding of state law enforcement, court, prosecution, indigent defense, and related programs. While Byrne JAG grants can be used by states to fund indigent defense services, the formulation used for awarding grants has been criticized because it neither (i) conditions federal funding on the establishment of statewide public defense systems, nor (ii) requires any percentage of the federal grant go toward indigent defense programs.14
Congress and Indigent Defense
In 1964, Congress passed the Criminal Justice Act (CJA), “[t]o promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate defense in the criminal cases in the courts of the United States.”15 The Act established a system, administered by the federal judiciary, for the appointment and compensation of counsel to represent indigent defendants charged with federal crimes. In 1970, the CJA was amended to authorize districts with large numbers of indigent defendants to establish federal defender organizations as counterparts to federal prosecutors in U.S. Attorneys’ offices.16
The Innocence Protection Act (IPA) sponsored by Senator Patrick Leahy (D-VT) in the Senate, and Representatives Ray LaHood (R-IL) and Bill Delahunt (D-MA) in the House, and with support from Representative James Sensenbrenner (R-WI) and Senator Orrin Hatch (R-UT), was passed by Congress as part of the of 2004 (JFAA).17 The IPA was intended to help reduce the risk of wrongful convictions and executions in capital cases, and the JFAA was also intended to improve access to forensic evidence in criminal trials. The IPA includes a provision authorizing grants to states to improve their appointment of qualified defense counsel in capital cases, and conditions those grants on states adopting minimum standards for defense counsel and prosecutors in capital cases.18 Grants for such a purpose must be matched by equal-sized grants to prosecutors to enhance their ability to effectively prosecute state capital cases and vice versa. In September 2010, Senator Leahy introduced a reauthorization of the JFAA that would also extend provisions of the IPA.19 Though the legislation never came before the Judiciary Committee for markup, according to his staff, Senator Leahy intends to reintroduce the JFAA reauthorization in early 2011.
Finally, the John R. Justice Prosecutors and Defenders Incentive Act of 2008 (J.R. Justice Act) authorizes a program for student loan repayment for prosecutors and public defenders.20 This piece of legislation, which passed both chambers with overwhelming bipartisan support, increases the incentive for the best and the brightest young lawyers to enter public services as public defenders and prosecutors.
Resources Available to Indigent Defense Attorneys
In our adversarial legal system, the truth is expected to emerge from the clash of two well-prepared, opposing sides, each of which has the ability to present its arguments, evidence, and witnesses with full knowledge of the rules of engagement. However, especially at the state and local level, the resources available to the district attorney or prosecutor often far exceed those available to the defender, creating a favorable situation for government power and a dangerous situation for individual liberty. For example, defenders, who most often depend on the very government they are opposing in court for their salary, frequently lack the time or funding to pay for necessary expert witnesses.21
Additionally, inadequate funding leads to insufficient staffing of defenders’ offices. As a result, many public defenders have caseloads so large that they risk violating the oaths they took as members of the bar to provide adequate attention to each client, and also violate, by a large margin, the American Bar Association’s (ABA’s) guidelines for attorney caseloads.22 In fact, the Bureau of Justice Statistics reports that in 2007, 73% of county-based public defender offices exceeded the maximum caseload per attorney.23 Similarly, state public defender offices had a median 67% of the attorneys necessary to comply with caseload limits.24 The Cato Institute reported that “[i]n one highly publicized case, the Atlanta public defender demoted a staff attorney because she had filed a motion asking the local judges to appoint her to no more than six cases per day” (emphasis added).25
The federal government exacerbates already existing resource imbalances between the prosecution and defense by furnishing funding to the states for prosecution and law enforcement functions, as well as for training and technical assistance for prosecutors and law enforcement agencies, while providing almost no analogous support for state-based public defense services. The administration proposed $3.4 billion in federal funding for state, local, and tribal law enforcement assistance programs in fiscal year (FY) 2011, a $722.5 million increase from FY 2010.26 Of that $3.4 billion in federal funding, a total of $1.3 million would be specifically directed to indigent defense programs.27 An additional $2.5 million would fund the hiring of personnel for the Access to Justice Initiative, a DOJ program launched in March 2010 whose mission is to improve the availability and quality of indigent defense.28 This means that under the President’s FY 2011 budget, less than 0.1% of federal funding for state law enforcement programs would be specifically directed to indigent defense services.
There are many examples of this imbalance. For instance, state prosecutors receive millions of dollars each year in direct federal funding through Byrne JAG, while public defense attorneys receive virtually no federal funding. Although indigent defense is currently a permitted expenditure of Byrne JAG funds, states may be unaware of this because it is not explicit in the statute.29 States consistently spend either none or only a miniscule portion of the grant money for public defense programs, directing a vastly greater share to law enforcement and prosecutorial programs. In 2009, of the $1.2 billion in federal funding to states, only $3.2 million was spent on indigent defense, while prosecutors and courts received over $171 million and law enforcement received more than $521 million.30 The disparity is staggering.
Likewise, prosecutors often have ready access to federally funded crime labs, while too often public defense attorneys are denied access or provided inadequate funding for essential testing. Similarly, state prosecutors have access to excellent training resources through the federally funded Ernest F. Hollings National Advocacy Center on the campus of the University of South Carolina,31 while the federal government provides no funding for public defense professionals (and funding for state prosecutors in this training program has currently been removed for FY2011). These resource imbalances make it extremely difficult for publicly funded defense counsel to assess the reliability of the prosecution’s evidence and to validate their own evidence. The end result is that juries and judges are deprived of critical information necessary to ensuring accurate verdicts and fair sentences.
Transparency, Oversight and Accountability in Indigent Defense
Transparency regarding government support of public defenders is necessary for the effective representation of indigent defendants. Without transparency in the manner in which federal, state, and local governments allocate funds and resources for indigent defense, it is nearly impossible to accurately assess the disparity in spending between indigent defense and prosecutors and law enforcement, fix deficiencies in systems, or hold anyone accountable for infringing upon the constitutional rights of indigent defendants. As Erica Hashimoto, associate professor of law at the University of Georgia Law observed, “we have no idea how many defendants are represented by the indigent defense systems in the country, how many misdemeanor defendants have a right to counsel, or how what percentage of defendants who are entitled to court-appointed representation go unrepresented.”32
The current system does not provide the requisite transparency. The Bureau of Justice Statistics collects indigent defense data, but only for felony cases and only in very large jurisdictions. There is little data available for either misdemeanor representation or felony representation in smaller districts. Moreover, when the Bureau of Justice Assistance accepts grant applications from state and local criminal justice entities, it does not require reporting on indigent defense. Thus, the data necessary to evaluate indigent defense in a specific district simply does not exist.Even if this data were available and violations of the constitutional right to counsel were detectable, it would be very difficult to hold state governments accountable should they abrogate the constitutional right to counsel. DOJ currently does not have the authority to hold state and local governments accountable for failing to meet their constitutional obligations, even if these jurisdictions use DOJ funding for their criminal justice systems. As a result, the responsibility for monitoring local governments and identifying constitutional violations falls to the defendants themselves—the very individuals who lack adequate legal counsel and access to knowledge of the law.