Epiphenomenal indigent defense.

• Author: Brown, Darryl K.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

1. INTRODUCTION

   There are some much-studied, recurring social events and behaviors that, although centrally important to public policy and social life, have proven intractable to explanation and prediction. As currently salient examples, consider stock market crashes and recessions. Economists cannot consistently see them coming nor explain them after the fact in consistent detail. (1) Another example is crime rates, which rise, and in recent decades fall, without any discernable strong causal link to familiar variables such as employment or imprisonment rates. (2) This Article describes why we can add state funding for indigent defense counsel to that list and what this conclusion means for indigent defense funding policy.

   States are required to provide indigent defense in a specific set of cases--including felonies, misdemeanors for which defendants are sentenced to incarceration, and appeals (3)--and the minimum quality of that representation is nominally constitutionally guaranteed as well. (4) Those mandates should lock indigent defense systems, and, at least roughly, indigent defense budgets, into a fairly stable and direct relationship with other components of criminal justice--particularly prosecutor staffing, courts' criminal caseloads, and prison populations. Yet they do not.

   Two features of indigent defense stand out. First, indigent defense is perennially underfunded in many jurisdictions. Second, and more interestingly, indigent defense systems vary greatly over time and space. Budgets rise and fall from year to year within a state, and the budgets and designs of indigent defense systems vary greatly across states and even among jurisdictions within the same state. It is that perpetual variation and instability that puts American indigent defense policy in the category of the unpredictable. Indigent defense provision does not function under the few identifiable variables that usually characterize strong, specific, well-enforced constitutional mandates. Rather, its history, nearly forty years after Gideon, rests on myriad influences, events, and variations in government.

   Indigent defense is epiphenomenal: it is a secondary effect of these political events and variations, rather than a stable function of constitutional and statutory mandates that closely tie it to the criminal justice systems' other components. Until that status changes--and there are nascent signs that it could--indigent defense policy will continue to have long periods of inadequate service with systemic crises that are periodically interrupted by reform efforts typically prompted by litigation or intervention of influential groups, such as state bar associations and state judiciaries. The remainder of this Article develops this description of the political instability of defense funding and points to some promising state approaches to indigent defense that hold potential for moving defense provision into a more stable, less volatile relationship with the criminal justice systems of which it is a part.

2. INDIGENT DEFENSE AND INCARCERATION RATES

   First, consider indigent defense in relation to a related component of criminal justice systems: incarceration rates. While the overall American incarceration rate is several times higher than that of any other industrialized democracy, (5) state sentencing practices nonetheless vary substantially. The two states with the lowest incarceration rates, Maine and Minnesota, have rates that are less than a quarter of those found in the highest-incarceration American state, Louisiana. (6) All U.S. states have high incarceration rates by European standards. (7)

   Indigent defense systems vary tremendously among states, though in ways that are difficult to measure quantitatively and to rank ordinally. Despite a trend toward common models--such as more state, rather than local, funding of indigent defense and more supervision by state boards or agencies--states still use a wide array of models for providing indigent defense. Because of the diversity of those models, the resources available for counsel, as well as the quality of representation provided by counsel, are difficult to measure. As noted below, many states fund only part of their indigent defense services from state budgets and leave the remainder to localities; (8) as a result, reliable figures on statewide expenditures are not available for some states. Nonetheless, we have enough data on states' overall funding of indigent defense to allow for some plausible estimates and observations of relative defense resources.

   Prisons and indigent defense are big ticket items in state criminal justice budgets. Prison budgets are much bigger and more prone to steady growth than indigent defense budgets. Nonetheless, states perennially find it difficult to sufficiently fund defense attorneys, especially given the political nature of the expenditure. States spent about $3.5 billion on indigent defense in 2005; (9) that same year, states also spent about $38.2 billion on corrections, (10) with approximately 88%, or about $33.6 billion, going to prisons. (11) Put differently, on average, corrections account for 6.8% of states' general fund spending. (12) Indigent defense funding amounts to roughly a tenth of that.

   On the theory that there ought to be a direct correlation between incarceration rates and indigent defense funding, it is plausible to suspect that defense funding would rise with prison funding. The relation of incarceration rates to prison funding is more complicated, as noted below. States with higher incarceration rates have to spend more on prisons, although spending on prisons per prisoner varies notably among states. (13) Because counsel is constitutionally required for sentences resulting in incarceration (14) and because only a small portion of defendants waive counsel or hire private attorneys, (15) demand for appointed defense counsel (and thus funding for them) should roughly rise and fall in direct correlation with incarceration rates. (16) Thus, an increase in the number of defendants facing incarceration suggests a need for more counsel to represent them, and most of that counsel would be publicly funded. (17) conversely, lower incarceration rates should correlate with lower funding for appointed defense counsel. There is a strong normative argument for maintaining that correlation as well because rising numbers of defendants without increased funding for their attorneys means, on average, less adequate representation.

   Some support for this hypothesis comes from a doctrine and remedy recently employed in several states in order to enforce minimally sufficient funding for indigent defense. in many states over the past two decades, attorneys for indigent defendants have filed motions or brought class actions alleging that funding levels for publicly funded counsel are insufficient to provide representation that meets the constitutional standard of effectiveness. Alabama, Arizona, Connecticut, Florida, Illinois, Kentucky, Massachusetts, Michigan, Louisiana, Massachusetts, New Mexico, New York, Pennsylvania, Tennessee, Washington, and West Virginia have all seen various forms of this litigation in recent years, sometimes repeatedly. (18)

   The common argument is that, in a given local jurisdiction, caseloads have risen beyond the capacity of public defender offices to handle all defendants' cases effectively. Put differently, increases in state felony prosecutions, which have pushed incarceration rates upward, have outpaced funding for defense counsel. The remedy granted in several states is to relieve defense attorneys from representing existing clients or to impose a ban on those lawyers taking on additional clients, sometimes through a presumption of ineffective assistance that attorneys with full caseloads can invoke by filing a motion when appointed to represent a new client. (19) Those sorts of remedies pressure legislatures to provide more funding for indigent defense because some prosecutions cannot move forward without defense attorneys--a result that legislatures will not likely abide for long.

   In theory, these remedies push incarceration rates to more closely accord with minimally adequate defense funding; imprisonment will only rise when defense funding does. Through such orders, courts limit policymakers' abilities to increase prison populations and, to some degree, funding and capacity of other parts of criminal justice infrastructure such as prosecution offices and courts, without proportionate increases in indigent defense funding.

   This straightforward account nonetheless will strike knowledgeable observers as implausible because it takes no account of spending discretion by policymakers for indigent defense or for prisons. States in practice have much flexibility in the degree to which they fund defense counsel, and, to varying lesser degrees, prisons, courts, and prosecutors. Systemic funding for indigent defense, the level of attorneys' pay for indigent representation, and the quality of representation that defendants receive are constitutionally regulated only at the far extremes. (20) Within that broad range of discretion, states fund indigent defense in accord with their policy preferences and competing budget priorities. (21) Data bear out this variation.

   States vary widely with regard to funding levels, funding structures, and stability for indigent defense. Hourly rates for appointed counsel vary widely. For example, the rate is $40 per hour in Oregon, Kentucky, and Wisconsin; $50 an hour in Vermont and Tennessee; $60 an hour in South Carolina, Ohio, Oklahoma, New Hampshire, and New Jersey; $90 an hour in Hawaii, Virginia, and California (for some felonies in certain localities); and $100 an hour in Nevada and Massachusetts (for homicide cases). (22)

   Caps on total fees vary greatly as well. For appointed counsel, Virginia limits fees to $600 per case for less serious felonies and $1,235 per case...