Here are the questions to ask to strengthen your state's public defense system.

Prison Policy Initiative updates for July 27, 2021 Showing how mass incarceration harms communities and our national welfare

Nine ways that states can provide better public defense [[link removed]] We suggest a few questions to ask to assess the strength of your state's public defense system. [[link removed]]

by Ginger Jackson-Gleich and Wanda Bertram

One of the many reasons mass incarceration persists is because people too poor to afford their own lawyers are denied meaningful representation in court. This injustice happens because public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened.

While every state and local public defense system is unique, we've identified nine urgent and common problems that plague public defense systems nationwide. Unfortunately, there isn't enough current data for us to explain how every state stacks up on these issues, but we've done the next best thing: We've created a list of nine questions you can ask to assess where your state's public defense system might need help, and we've highlighted helpful and detailed resources that can assist reform efforts.

Use these questions as a guide to learn whether your state public defense system is facing common problems and what can help to solve them:

Oversight agencies that have meaningful independence can insulate public defense systems from whims of political pressure.

Does an independent agency oversee public defense in your state? As the Sixth Amendment Center has explained [[link removed]], it is critical to have a statewide agency responsible for both "the oversight and [the] evaluation of defender services." Such agencies must have authority to create and enforce standards for effective representation [[link removed]] (such as those related to workloads, supervision, and performance). Alongside these supervisory duties, oversight agencies that have meaningful independence can also insulate public defense systems [[link removed]] from the whims of political pressure or judicial interference, which enhances the long-term stability of public defense provision.

Notwithstanding the importance of such agencies, as recently as 2017, 16 states [[link removed]] lacked any such entity, and more than half the agencies that did exist lacked independence.

Does your state shoulder the cost of public defense or leave the burden to local governments? As the Brennan Center notes [[link removed] Fair Fight.pdf], public defense "has always been and remains an unfunded federal mandate." Where states don't assume financial responsibility, local governments are left to cover the cost. As recently as a few years ago, 11 states [[link removed]] provided "minimal to no state funding" for public defense, leaving their local governments to shoulder the entire financial burden. By contrast, 27 states [[link removed]] relieve local governments of "all responsibility for funding right-to-counsel services."

As the Sixth Amendment Center succinctly explains [[link removed]]: "State funding of indigent defense services has proven to be the most stable for two principal reasons. First, local governments have significant revenue-raising restrictions placed on them by the state while generally being statutorily prohibited from deficit spending. Second, the jurisdictions that are often most in need of indigent defense services are the ones that are least likely to be able to afford it."

Does your state increase public defense funding when demands on public defenders increase? Just as important as whether public defense funding is adequate at a moment in time is whether that funding grows when other parts of the criminal legal system are expanded. For example, is funding for police-worn body cameras accompanied by funding to help public defenders review collected camera footage? If new conduct is criminalized, is there an increase in public defense funding to deal with the increased criminal caseload? As the American Bar Association notes [[link removed]]: "No part of the justice system should be expanded or the workload increased without consideration of the impact that expansion will have on the balance and on the other components of the justice system."

Many legal groups recommend banning flat-fee contracts and restrictive fee caps.Does the way attorneys are compensated create perverse incentives? In places without public defender offices, counsel is provided in several ways. Sometimes, courts appoint counsel on a case-by-case basis. As the Brennan Center has explained [[link removed] Fair Fight.pdf], appointed counsel are frequently compensated at very low hourly rates, and total compensation is often limited by fee caps that restrict how much attorneys can earn per case. Similarly, courts may hire private attorneys to "represent an unlimited number of clients for a set fee." Under either model, such arrangements [[link removed] Fair Fight.pdf] "incentivize attorneys to do as little work as possible on each case...because all costs for a case, such as investigation or consulting expert witnesses, come out of the same fee and thus directly eat away at whatever profit the attorney makes." Accordingly, many legal groups (including the ABA [[link removed]]) recommend banning flat-fee contracts and restrictive fee caps — nonetheless, these approaches remain the most common method of providing and funding public defense across the country.

Do fines and fees fund public defense? Some places (like New Orleans [[link removed]]) cover the cost of operating the criminal legal system through the collection of fines and fees [[link removed]]. Public defenders, prison and jail expenses, probation and parole services, GPS monitors, and court processes can all be funded in this way. However, this "user-funded" approach is both cruel and unstable. Many people saddled with fines and fees are unable to afford them, and being forced to pay can push people deeper into debt, subject people to predatory debt collection practices, and even result in incarceration [[link removed]]. Moreover, given widespread inability to pay, revenue from fines and fees is an unstable source of funding for public defense offices.

Being forced to pay can push people deeper into debt, subject people to predatory debt collection practices, and even result in incarceration.

Some places have started to abolish such fines and fees and to commit to more reliable funding for public defense. For example, California recently abolished [[link removed]] many criminal legal fees, including the fee charged for representation by a public defender.

Are there meaningful, enforceable workload limits for public defenders? One of the most widespread and pernicious problems facing public defenders is the burden of crushing caseloads. To address such problems, states must adopt realistic and enforceable workload standards [[link removed]]. However, few jurisdictions [[link removed]] have adopted any such limits.

Importantly, it is also critical to note that some of the most widely promulgated national standards weren't actually "based on any empirical research and were set too high [[link removed] Fair Fight.pdf]" initially, so it is critical that states adopt standards tailored to the reality of criminal practice in their own jurisdictions. As the American Bar Association has explained [[link removed]]: "National caseload standards should [never] be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney's nonrepresentational duties) is a more accurate measurement."

Does the state give public defenders access to the information they need to do their jobs effectively? While prosecutors are required to turn over exculpatory evidence to the defense, violations of this rule [[link removed]] are not uncommon. In particular, defense attorneys often find it difficult to obtain information about prior police or prosecutor misconduct that may be relevant to their cases. This reality can mean that law enforcement officials with a history of abusing their power and prosecutors who shirk their ethical obligations can continue to do so. However, states can remedy this problem by making information about police misconduct and prosecutorial misconduct available to defense counsel or to the public at large. For example, California [[link removed]] recently passed a law intended to make police misconduct records publicly available. And states like Ohio [[link removed]] have passed open-file discovery laws, which require the prosecution to share everything in their file with the defense — a practice that can lead to [[link removed]] "a more efficient criminal justice system that better protects against wrongful imprisonment and renders more reliable convictions."

It is clear that justice is better served when defense counsel is involved in the earliest stages of a criminal proceeding.

Is counsel appointed before a client's very first court appearance, or is appointment delayed until later in the process? Increasingly, it is clear that justice is better served when defense counsel is involved in the earliest stages of a criminal proceeding. Ideally, this will mean meeting a client prior to arraignment (the stage at which charges are formally announced) and representing them at that hearing and/or at any prior appearance that might occur. As one project [[link removed]] in California demonstrated, meeting clients within hours of an arrest can increase the chance that someone will be released on bail, which means that someone won't remain incarcerated while their case makes its way through the system. Another California pilot program [[link removed]] found that, where public defenders represented clients at arraignment, defendants spent less time in custody, the county benefited financially, and due process was better safeguarded.

Does your public defense system provide holistic defense for clients who need other legal (or even non-legal) assistance? For many people summoned to criminal court, the charges pending against them are only one of numerous challenges they face. Collateral consequences like deportation or losing access to social services may flow from a conviction, and may even result from merely facing criminal charges or being detained. Furthermore, issues like a pending eviction, a denial of public benefits, or a need for counseling may also predate the filing of any charges.

Exemplary public defense systems across the country are finding ways to help their clients and advocate for their rights even beyond representing them in criminal proceedings. For example, in Alameda County, the public defender's office launched an immigration representation project [[link removed]] through which the office now represents noncitizen clients in subsequent removal proceedings and helps them obtain lawful permanent resident status in the United States. And the Bronx Defenders Office commits [[link removed]] "to addressing clients' most pressing legal and social support needs" and pledges to begin representation by "identifying [and supporting] the full range of client needs." Likewise, some public defender offices have started to embed social work teams within their departments. As one study [[link removed]] found, the involvement of social workers has a positive impact on "sentencing, attorney-client relationships, defendant experiences with the court systems, and connecting clients to community services, as well as building court actors' knowledge of services available in their own community."

Conclusion

Even an excellent public defense system in every state would not, on its own, end mass incarceration, but ensuring that every person accused of a crime has satisfactory assistance of counsel would certainly help. As many others have noted [[link removed]] before us, the constitution's promise that every criminal defendant has the right to legal counsel has never been a reality in this country.

The constitution's promise that every criminal defendant has the right to legal counsel has never been a reality in this country.

Today, at least 4.9 million people [[link removed]] are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can't afford their own lawyer. Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist.

* * *

For footnotes and more details on our analysis, see the online version of this briefing [[link removed]].

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