Public Defense: A Constitutional Failure

January 30, 2019

 

This January marks 56 years since the Supreme Court heard a case to guarantee the right to counsel regardless of ability to pay. This month marked the anniversary of the court unanimously ruling in favor of this right.

 

In 1963, Gideon v. Wainwright extended the right to counsel established by the fifth and sixth amendments to the U.S. Constitution, and in doing so allowed the economically disadvantaged to challenge criminal charges against them. In recent years, those who could not afford counsel accounted for as much as 80 percent of all defendants. In the half decade since this landmark ruling, the public defender system has become fraught with flaws. Intended to provide equal access to defense against criminal charges, public defense has instead perpetuated the very inequalities it sought to mitigate.

 

Public defender systems are mostly funded through state and county budgets, but cuts have forced hiring freezes and increased individual workloads that undermine the effectiveness of any lawyer, despite any good intentions on their part. Public defenders have expressed just as much frustration with this system as their clients. In many states, such as Missouri and Idaho, public defenders are suing for better funding and working conditions. Part of the problem lies with the fact that the budget for the prosecutor's office often far outweighs that for public defense offices; in 2007, the budget for state prosecutor’s offices across the country was almost 3.5 billion more than that for public defenders. The disparity in budget allocations reflects a disturbing principle in the American criminal justice system: the U.S. is willing to prosecute those with no ability to defend themselves on a massive scale nationwide. This is an alarming violation of constitutional rights.

 

For those who rely on a public defender, the cost of having one may not be monetary, but rather a host of ramifications such as an undeserved sentence or months spent in jail pre-trial while their lawyer struggles to get around to their case. Although the American Bar Association recommends that public defenders work at most 150 cases a year, many are forced to take on much larger workloads. Lawyers in Missouri can even be expected to take on 80-100 cases a week - a trend noticeable across the country. What results from this pattern of overworking and underpaying these lawyers is a system set up to fail the people that rely on it and frustrate those working in it. Many report being assigned cases last-minute, assigned cases with clients who are held over any hour away from their office, and assigned high-level felony cases with little to no experience. Lawyers cannot commit the time and energy to properly investigate and build a case, and their clients suffer for it. A large portion of those represented by public lawyers plead guilty to charges regardless of the facts of the case - simply because there was no time to build a case.

 

The very purpose of the public defender system is rooted in protecting the constitutional rights of the economically disadvantaged. Assigning someone a lawyer who can only provide a physical presence in court and no preparation otherwise does not fulfill the constitutional right to counsel. Rather, it violates the very basis for this right - to provide people the chance to defend themselves regardless of ability to pay for that defense. And defense entails more than just showing up to court. In light of racial profiling and socioeconomic disparities in arrest rates -  it becomes even more important to protect this right. Populations that are unfairly targeted for criminal arrests deserve the opportunity to challenge such charges. The long-term consequences of imprisonment, such as unemployment, exacerbated and untreated addictions, and stress on familial units perpetuate the cycle of poverty and can create a larger demand for an already failing system.

 

The U.S. accounts for 25 percent of the global prison population despite having only five percent of the world’s population. Public defense could be key to reducing this number. Compared to other aspects of criminal justice, like prosecution and corrections, public defense falls lows on the list of priorities. But building a better public defense system addresses some of the most prominent issues in criminal justice: wrongful sentencing, drug and alcohol treatment, and disproportionately large incarceration rates, to name a few. This system would allow the criminally charged to receive fair sentencing, proper drug or alcohol treatment programs, and mental health facilities - all of which decrease recidivism rates as well. Ignoring the failures of the current system can wrongfully or unduly sentence an entire class of people. Poor people do not deserve poor defense.

 

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