Symposium: broke and broken: can we fix our state indigent defense system?

• Author: Uphoff, Rodney

Foreword

1. INTRODUCTION

   Over 45 years ago in Gideon v. Wainwright, Justice Black proudly proclaimed:

   The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. (1) Sadly, as numerous national reports, (2) individual state studies, (3) and articles (4) demonstrate, this "noble idea" represents only a cruel illusion to many state criminal defendants in this country. Too many indigent defendants in state courts are represented by undertrained, under resourced lawyers who are under prepared--or at times totally unprepared--to conduct the defense of their clients' cases. Stephen Bright's rousing keynote speech at the 2010 Missouri Law Review symposium provided numerous examples of glaringly incompetent representation by indigent defenders to state court defendants facing serious felony charges or even the death penalty. (5) other symposium presenters were equally critical of the indigent defense system in Missouri and in a host of other states. Because most lawmakers in states apparently lack the political will to adequately fund the delivery of indigent defense services, too many state court criminal defendants face prosecution without a defense lawyer ready, willing, and able to provide an effective defense.

   That is not to say that all poor defendants uniformly receive shoddy representation. in fact, some indigent defendants receive excellent representation. indeed, a number of the symposium presenters described in glowing terms the training, resources, and caseloads at the Washington, D.c. Public Defender service (PDs). (6) For these former public defenders, PDS illustrates that a well-funded, well-structured, and well-managed public defender office can provide first-class representation.

   Moreover, even in states with severely underfunded delivery systems and with lawyers strapped with oppressive caseloads, indigent clients with overworked counsel may be better off than poor clients whose income is just enough to disqualify them from receiving counsel at state expense. Generally, the marginally poor who face criminal charges either represent themselves or scrape up just enough money to hire private counsel to negotiate a plea bargain. (7) on the other hand, well-heeled criminal defendants who retain private counsel often, but not always, receive better representation than that received by indigent defendants or the working poor. (8) simply put, the assistance of counsel in state courts across the country is disturbingly uneven. (9) it is not, however, just the size of a defendant's pocketbook that determines whether an accused receives competent assistance of counsel. Rather, the quality of representation a state court defendant receives in the united states is primarily "a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged." (10)

   In light of all of the reports describing the crisis in the delivery of indigent defense services throughout the United States, including news stories of the serious problems in Missouri, (11) the Missouri Law Review decided to focus its attention on indigent defense and to title its 2010 Symposium issue "Broke and Broken: Can We Fix our State Indigent Defense System?" Not surprisingly, all of the Symposium presenters and commentators agreed that the overall picture of indigent defense representation across the United States is dismal. The presenters' focus on broken delivery systems with contract lawyers or public defenders handling far too many cases mirrors the recent observations of Attorney General Eric Holder. (12) Holder has publically condemned the shortcomings of state indigent defense systems and has pledged his help to address the problem of inadequate funding for such systems. (13)

   Few jurisdictions have a public defender system as dysfunctional as Missouri. It was hardly a surprise, then, that several Symposium presenters focused on Missouri. (14) This focus was not simply a byproduct of the Symposium's venue. Rather, it reflects the fact that, almost from its inception, Missouri's Statewide Public Defender program (MSPD) has been underfunded. (15) The program has been in crisis for years, and in 2005 the Spangenberg Project declared that MSPD was "the lowest funded state public defender system in the nation" and "'on the verge of collapse.'" (16) The Spangenberg Project returned in 2009 and once again lamented the deplorable state of the MSPD, finding that "Missouri now has the lowest per-capita expenditures of all states, except for Mississippi." (17) As a result, Missouri public defenders like those lawyers in other underfunded programs--have been laboring under oppressive caseloads for some time. (18) High caseloads and poor working conditions have contributed to the incredibly high turnover in the Missouri public defender system. (19) Ultimately, however, it is Missouri's criminal defendants--like those in other seriously under funded states--who suffer the most at the hands of their overworked defenders. (20) Not only do inexperienced, unprepared lawyers fail to provide clients their constitutional right to the effective assistance of counsel, such defenders also contribute to wrongful convictions. (21)

   Even though almost everyone concedes that the caseload crisis in Missouri is real, (22) the dire state budget situation makes a significant infusion of new resources virtually impossible. So if Missouri, like most other states, is truly broke, then realistically can the state find the funds needed to fix its broken indigent defense system? That was the question at the heart of the Symposium. The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.

2. SYMPOSIUM LESSONS

   The first lesson is painfully obvious to informed observers but not necessarily to many in the general public who lack a good grasp of the actual workings of the criminal justice system at the state level: many defendants in many jurisdictions receive only limited assistance of counsel. indeed, the picture painted of indigent defenders and their work by the Symposium presenters was, for the most part, quite disturbing. Presenters like Stephen Bright and Sean O'Brien horrified the audience with alarming examples of shockingly poor representation. (23) None of the speakers suggested that such horrific examples are rare or that a majority of defendants in most jurisdictions actually do receive the effective assistance of counsel guaranteed by the Sixth Amendment. Rather, all agreed that too many state court defendants are represented by a lawyer without the time or resources to do more than facilitate a plea bargain.

   A second lesson to be drawn from this Symposium is that the high caseloads generated by underfunded indigent defense systems place enormous pressure on indigent defenders and on those responsible for administrating such systems. Representing indigent defendants can be a challenging job even for the most committed lawyers with access to adequate support services, investigators, and experts. (24) For lawyers who handle an enormous caseload without adequate support, the demands are incredibly taxing. Moreover, juggling high caseloads severely limits the time counsel can spend with any individual client or devote to a particular case, often leaving indigent clients angry and unsatisfied. That anger frequently is directed at defense counsel.

   Not only does the overworked defense counsel have to endure angry clients, counsel regularly must deal with irate judges unsympathetic to counsel's lack of preparedness or timeliness. It is professionally draining to be subjected repeatedly to a judicial tongue lashing for arriving unprepared for a hearing, especially when counsel knows that she is unprepared for the full docket that awaits the next day. Nonetheless, even in the face of these extremely trying circumstances, most of the defense lawyers handling indigent defense cases are striving to do their best for their clients. Not surprisingly, frustrations mount as defenders struggle to cope with oppressive caseloads and the burnout that often follows. (25) Nor is it surprising that burnout produced by these high caseloads leads to high turnover rates in many under-funded indigent defender systems. (26) That turnover, unfortunately, only exacerbates the pressure on the remaining lawyers in the office and increases the number of clients who will be ill-served by a replacement lawyer...