Support for a White House Commission on the public defense crisis mounts

Pleading the Sixth: On March 15th, 2013 the U.S. Department of Justice hosted an event commemorating the 50th anniversary of Gideon v. Wainwright. The event was both a celebration of the watershed case’s promise of a meaningful right to counsel, and a somber discussion of the nation’s long-standing systemic deficiencies in realizing that promise. Not content to let those deficiencies continue for another 50 years, the DOJ panelists proposed in a letter sent to Attorney General Eric Holder that the White House should create a Commission on the Fair Administration of Justice for the Indigent Accused. Over the summer support for the idea has grown with defenders, state supreme court justices, and policymakers in 47 states – along with national criminal defense membership organizations – all calling for DOJ and the White House to form such a commission.  

“America’s indigent defense systems exist in a state of crisis,” announced U.S. Attorney General Eric Holder, Jr., in his prepared remarks at a March 15, 2013 event at the Department of Justice commemorating the 50th anniversary of Gideon v. Wainwright – the U.S. Supreme Court case requiring states to provide competent counsel to poor people facing a loss of liberty in a criminal proceeding. (Watch video of the event here.) Echoing the sentiments of the Gideon Court that “the right to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours,” Attorney General Holder noted that the failure of most states to ensure a meaningful right to counsel “is unacceptable – and unworthy of a legal system that stands as an example for all the world.”

The invited panelists that spoke at the DOJ event – former Alabama Supreme Court Chief Justice Sue Bell Cobb, former Vice-President Walter Mondale, Director of the New York Office of Indigent Legal Services William Leahy, and Executive Director of the Equal Justice Initiative Bryan Stevenson  – proposed decisive action to address the “problems that have prevented the dream of Gideon from being realized,” in a letter to AG Holder dated April 4, 2013.

Specifically, the four panelists propose the creation of an adequately staffed, bi-partisan White House Commission on the Fair Administration of Justice for the Indigent Accused (“Commission”) to meet monthly for a year to address six specific topics:

1. pre-trial release and use of cash bail;
2. early appointment of counsel;
3. independence of the defense function;
4. increased use of diversion and reclassification of low level non-violent offenses to infractions;
5. uncounseled waivers of representation; and,
6. the fiscal and human costs of over-incarceration.

The authors of the letter recommend that the White House appoint “experienced, creative and highly respected persons whose understanding of the criminal justice system and the right to counsel assure the requisite expertise and credibility so essential to effective results.” The hope is that the Commission will promulgate a set of recommendations that states and counties can implement in their own jurisdictions to address each of these issues.

The idea for such a Commission was spawned after hearing the Attorney General question criminal justice policies that are being carried out at the state level simply because that is the way that business has always been done. Specifically, during an interview with National Public Radio host Nina Totenberg at the John F. Kennedy Library on December 11, 2012, Attorney General Holder asked far ranging questions like, “Are we putting in jail the appropriate people? Are we putting people in jail for appropriate lengths of time? Are we putting people in jail who might better be served in out-of-jail facilities?” Calling it “a pretty shocking thing” that “in the 21^st century in the United States of America” there are still far too many juveniles “who will plead guilty in a proceeding without ever haven spoken to a lawyer,” Holder asked for the private bar, legislatures and courts to become educated on the problems, and involved in solving the crisis. The creation of this Commission would address the Attorney General’s concerns.

There is reason for optimism that the commission proposal will attract bi-partisan support at the national level as it has in the above referenced jurisdictions at the state level. Both the Republican chairman of the U.S. House of Representatives, Judiciary Committee, Rep. Bob Goodlatte (R –Virginia) and chairperson of the U.S. Senate Judiciary Committee, Sen. Patrick Leahy (D – Vermont) wrote thoughtful letters to honor the fiftieth anniversary of Gideon. Rep. Goodlatte correctly points out that “[c]onfidence in our system of justice will be weakened if we cannot ensure that the government’s evidence will be put to the test by able advocates.” Or, as Sen. Leahy declared in his letter, it is unfortunately true that “in some parts of the country, it is better to be rich and guilty, than poor and innocent.”

Perhaps most importantly, there has been a long steady drumbeat over the summer for the DOJ and White House to take this action from the people who struggle with this issue on a daily basis. Regardless of whether a jurisdiction is large or small, state funded or county funded, or situated in the North, South, East or West, the message has been the same: “We are struggling and we need the help of the Federal Government.”

Below is just a small sample of the issues raised in these letters as being demonstrative of the need for such action:

While Hawaii has a good statewide statutory indigent defense service, the OPD has struggled to maintain adequate funding for its program.  Within the last five years, the OPD has suffered position freezes resulting in up to a 12% reduction in attorney staff, furloughs, and salary reductions.

John Tonaki, Public Defender, State of Hawaii

The Law Office of the Cook County Public Defender is certainly not alone in needing assistance and assurance from the federal government in guaranteeing compliance with the Sixth Amendment…In 2012, we defended to disposition 245,146 cases, resulting in a per-case cost of $220.  Officewide, each attorney disposed of an average of 557 cases. a number far above the maximum annual caseload recommended for a public defender office.

Abishi Cunningham, Public Defender of Cook County (Chicago, Illinois)

The fact that we do not have a state wide public defender system leaves us with no support when it comes to advocating for equal funding.  Due to excessive caseloads and staffing shortages, it has been incredibly difficult to keep qualified attorneys on staff.  We compete for county dollars for funding for education and training so that our attorneys are equipped to handle cases where citizens are facing the death penalty, with no mandatory minimum standards to use as guidelines.  Unfortunately, whenever there is a shortfall, the Public Defender education and training is always the first line item to get cut.

Traci Smith, Chief Public Defender, Minnehaha County (Sioux Falls), South Dakota

It’s not only adult defendants who are being squeezed by Missouri defenders having too many cases, it’s also juveniles.  The National Juvenile Defender Institute just completed a two year study of juvenile defense representation in Missouri and the results were frightening.  While Missouri is nationally recognized for its cutting-edge disposition and treatment programs for juveniles post-adjudication, the study revealed that the majority of non-certified juveniles never see or talk to a lawyer at all as they make their way through the juvenile justice system.

Richard Teitelman, Chief Justice, Supreme Court of Missouri, and Cat Kelley Director, Missouri State Public Defender

Louisiana is truly the belly of the beast.  Our state has the world’s highest rate of incarceration, 32 exoneress (with 3,200 additional applications sitting in our small, underfunded Innocence Project’s office) and ranks at the top of state lists on almost every poverty indicator.  Last year, defenders handled 287,419 cases.  Each one represents a real person’s life, the risk of wrongful conviction, a taxpayer expense for incarceration, and an opportunity for reentry as a productive member of the community.

Frank Neuner, Chairman, Louisiana Public Defender Board

Kentucky desperately needs national assistance to insure that its indigent defense system, the Department of Public Advocacy (DPA), meets the ABA Ten Principles of a Public Defense Delivery System (2002).…For instance: The average funding for each trial level case is but $212; The average newly opened cases by a DPA attorney for FY 13 is 500.

Edward Monahan, Public Advocate, Commonwealth of Kentucky

Despite efforts by many concerned individuals over the years, improvements in our state’s indigent defense systems are very slow in coming.  Public defender offices are overwhelmed with cases, assigned counsel programs have no meaningful oversight, no qualification or performance standards and are generally underfunded.

Dennis Keefe, Lancaster County Public Defender (Lincoln, Nebraska)

Nevada relies upon a patchwork of indigent defense systems with less than a third of counties having an institutional defender…. While the Nevada Supreme Court has recently implemented Indigent Defense Performance Standards, our state still suffers from the disparity between urban and rural defense systems, the continuing challenge of unmanageable caseloads, the lack of access to grant opportunities given to prosecutors, and an inability of both urban and rural defenders to meet the ABA 10 Principles.

Justice Michael Cherry, Nevada Supreme Court, Phil Kohn, Clark County (Las Vegas) Public Defender, and Jeremy Bosler, Washoe County Public Defender

Perhaps, Texas greatest indigent defense flaw is that the county indigent defense services are still under the control of the judiciary.  When public defense attorneys are forced to take into consideration what must be done to please a judge to get their next appointment, they are by definition not advocating solely in the interests of a client, as is their ethical duty.  A 2000 report commissioned by the State Bar of Texas reports that ‘[n]early four in ten (39.5 percent) of judges indicate that their peers occasionally appoint an attorney because he or she is a friend, while roughly one-third of judges sometimes consider whether an attorney is a political support (35.1 percent) or has contributed to their campaign (30.3 percent).’  There is simply no place in our criminal justice system for such undue judicial and political interference in the delivery of the right to counsel.

Hon. Rodney Ellis, Texas Senate, District 13

Though Colorado has many structural safeguards to protect poor people facing a loss of liberty at the hands of the criminal justice system, we struggle with excessive workloads and caseloads that are growing in complexity and duration. … In order to meet 100 percent of the minimum caseload standards for representation of FY 2013-14 closed case levels and to ensure the Public Defender is effectively serving its clients, the Public Defender would need to acquire an additional 168.5 full time equivalent staff (including 53 trial office and appellate attorneys, plus necessary support staff, at an annualized cost of about 11.1 million dollars). … The intensity and excessiveness of our caseloads and the lack of pay parity between the prosecution and public defender employees, has led to a higher than normal attrition rates, especially amongst new staff…. We cannot keep up in the constant cycle of hiring and training, then having to hire and train again and again.  If Colorado is experiencing these difficult issues, I cannot help but wonder what is happening to poor people in states with no statewide administration for right to counsel services – for example, Utah, Mississippi, South Dakota and Pennsylvania to name but a few.

Douglas Wilson, Colorado State Public Defender

Although the State of Vermont funds our state employee public defender system, our conflict counsel are seriously underpaid which makes it extremely difficult or impossible to find qualified attorneys to take cases that the state public defenders cannot.  In small rural counties, there are often no lawyers who will take these cases.

Matthew Valerio, Defender General of Vermont

In 1941, The Rhode Island Public Defender (RIPD) became one of the first full service statewide public defender offices established in the United States. … Despite our longevity, the RIPD struggles – as do most public defender offices – under excessive caseload.  In September 2010, the U.S. Department of Justice, Bureau of Justice Assistance (BJS) issued a report, State Public Defender Programs, 2007 that showed the RIPD having the highest workload in the country when measured against other statewide public defender offices. … [T]he BJS report determined that in 2007 we should have had 73 attorneys while we operated with only 40.  In the intervening six years, we have only been able to increase out staff by 9 attorneys while our incoming cases continue to escalate. … This is a long way of saying that if one of the oldest public defender offices in the United States faces these types of struggles than we as a nation are far from meeting the promise of equal justice envisioned in Gideon v. Wainwright.

Mary McElroy, Rhode Island Public Defender.

The outcry for those struggling in the states has contributed to a number of national organizations joining the call for a White House Commission, including the National Association of Public Defenders, the American Council of Chief Defenders, and the National Association of Criminal Defense Lawyers.

Although we have yet to see if a White House-sponsored, bi-partisan collaborative study of the right to counsel will improve state criminal justice policies, there are several examples of bi-partisan collaborative approaches that have worked, or are working, at the state level. For example:

• On July 1, 2013 Governor Rick Snyder signed into law a comprehensive legislative package transforming the way right to counsel services will be provided in that state.  The measure was passed with overwhelmingly bi-partisan support (Senate 32-6; House 102-7). The bill creates the Michigan Indigent Defense Commission (MIDC) – a 15-member commission appointed by diverse authorities with the power to develop and oversee the “implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults in this state.”  The legislative reform was the work of a broad coalition of people working together to solve Michigan’s crisis, including: judges, prosecutors, legislators, representatives of the Executive branch, the State Bar of Michigan, the American Civil Liberties Union, business leaders, the Michigan Justice Coalition, the State Appellate Defender Office, academics, and others. One key factor in the consensus approach is a document called A Blueprint for a Safer Michigan, produced by the Prosecuting Attorneys Association of Michigan, and supported by the local association of counties, the sheriffs association, and the association of chiefs of police, which called for increased resources for indigent defense.
• In Nevada, the state supreme court created a broad bi-partisan indigent defense task force and, upon the task force’s recommendations, the court issued a sweeping order removing the judiciary from the oversight of indigent defense, setting attorney performance guidelines by case type (death penalty, felony, misdemeanor, juvenile delinquency), and requiring counties to undergo case-weighting studies toward a goal of setting binding public defender workload standards. Recently, a state Supreme Court Justice called upon the state to take over services in rural Nevada.
• In March 2013, an Idaho Supreme Court-led criminal justice coordinating committee saw their recommendations to bar children from waiving the right to counsel, among other reforms, approved by the legislature on a near unanimous vote. The legislature also passed a resolution put forth by the coordinating committee asking the state to study the possibility of state oversight and funding of defender services. At the initial meeting of the legislative committee, the Idaho Supreme Court  Chief Justice stated that the state’s indigent defense system is broken and flat fee contracts should be eradicated.

Based on these experiences, the Sixth Amendment Center adds our name to the long list of supporters for a bi-partisan White House Commission on the Fair Administration of Justice for the Indigent Accused.