"It's Not You, It's Your Caseload": Using Cronic to Solve Indigent Defense Underfunding.

• Author: Jaffe, Samantha
• Position: NOTE

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads--which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen out of twenty-two statewide public defender systems operate with yearly caseloads that are significantly higher than the ABA recommends.

This Note argues that courts should utilize the procedural ineffectiveness presumption that the Supreme Court made available in United States v. Cronic to find state defense counsel carrying caseloads above the ABA-recommended maximums constitutionally ineffective. Thus, defendants could not be tried until caseloads in the locality fell within the maximums. This would incentivize state and local legislatures to spend more money on indigent defense.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: THE RIGHT TO (EFFECTIVE ASSISTANCE OF) COUNSEL II. THE ROAD NOT TAKEN: PROCEDURALLY INEFFECTIVE ASSISTANCE A. United States v. Cronic B. The ABA Maximums As a Bar to Excessive Caseloads III. PROCEDURALLY INEFFECTIVE ASSISTANCE AND ADEQUATE INDIGENT DEFENSE FUNDING CONCLUSION INTRODUCTION

Frederick Bell was arrested in October 2016 in Louisiana after police officers alleged "they found drugs in his car during a traffic stop." (1) He says he met with his attorney, a public defender, for five minutes after his arrest. (2) In November, Mr. Bell saw his attorney again, in court, where he was told about his plea offer. (3) His trial was set for April 2017. (4) On March 10th, less than a month before trial was set to begin, he still had not discussed his case with his attorney. (5)

Mr. Bell's circumstances are not unusual. The lack of adequate funding for indigent defense is well known and well documented. Extreme caseloads stemming from inadequate funding prompted the director of the Missouri State Public Defender System to appoint (6) the governor to a capital case in 2016. (7) In Mississippi, the NAACP Legal Defense and Educational Fund conducted an in-depth survey of indigent defense in 2003. (8) The report revealed that indigent defendants in state court were waiting for months in jail before being ushered through mass guilty pleas (groups of defendants that plead guilty together with little or no legal consultation). (9) In Louisiana, indigent defendants wait weeks, months, and possibly years for an available public defender to take their case. (10) The lucky ones, like Frederick Bell, wait to be contacted by their lawyers while out on bond; the unlucky ones wait in jail. (11) On February 6, 2017, the Southern Poverty Law Center filed a class action suit on behalf of plaintiffs denied a meaningful defense in Louisiana. (12) The pleading alleges that chronic underfunding has led to a complete failure of the indigent defense system in the state, denying defendants equal protection, due process, and the basic right to effective assistance of counsel. (13)

Systemic underfunding leads to high caseloads managed by too few attorneys. In 2000, more than 80 percent of people charged with felonies in state court in the United States were indigent. (14) In 2007, three out of every four county-funded (15) public defender offices in the country faced caseloads higher than the maximum ABA recommendations (150 felonies or 400 misdemeanors per full-time attorney per year). (16) Fifteen out of twenty-two state (17) defender systems also operated with caseloads that exceeded national standards. (18) That same year, individual lawyers in Florida faced caseloads of over 500 felonies and 2,225 misdemeanors. (19) In Tennessee, six attorneys were responsible for over 10,000 misdemeanor cases. (20) On February 17, 2017, the ABA Standing Committee on Legal Aid and Indigent Defendants released a report (21) that showed that, in order to "reasonably handle" the 150,000 cases assigned to public defenders each year, Louisiana would need 1,769 full time attorneys. (22) Currently, it has 363. (23)

In spite of alarming caseloads in many localities, significantly less money is often allocated to indigent defense than to the corresponding prosecutors' offices. (24) In New York City, the 2016 budget for the city's five district attorneys was $331.4 million. (25) The 2016 budget for public defense was $250.6 million, over $80 million less. (26) And in Washtenaw County, Michigan, the 2016 adopted budget allocated $2.9 million to the public defender and $5.9 million to the prosecuting attorney, a discrepancy of $3 million. (27) The discrepancies in funding between prosecution and defense are legal: states get to allocate funding however they choose. The numbers are particularly egregious, however, in light of the fact that public defense budgets pay for lawyers, investigators, and, in some offices, social workers and civil attorneys. (28) Prosecutors' offices, in contrast, pay for lawyers and victim's advocates, but investigation is conducted by local, state, and sometimes federal law enforcement--all entities with their own working budgets. There is no federal or state law that mandates "adequate" levels of indigent defense funding. The lack of funding mandates means no real, enforceable limit on caseloads for defense attorneys, regardless of the national ABA maximums.

Chronic underfunding and high caseloads in indigent defense matter because they are tied to effective assistance of counsel. Practitioners and professors who specialize in criminal defense agree that underfunding leads to too few lawyers, (29) excessive caseloads, (30) delays in meeting with clients, (31) and assembly-line guilty pleas. (32) Constitutionally effective assistance is impossible when attorneys face caseloads like those in Florida, Tennessee, or Louisiana.

The Supreme Court has recognized the right to an attorney since 1932 (33) and the right to effective assistance since 1984. (34) In the current ineffective assistance of counsel landscape, however, there is no way to allege that chronic underfunding directly leads to ineffective assistance. There's a gap between the violation of the right and the remedy. Defendants are forced to plead ineffective assistance on a case-by-case basis after the fact, even though most are represented by trial attorneys with caseloads that are too high for effective representation of any individual client.

This Note seeks to close that gap. Part I lays out the current landscape for ineffective assistance claims. Part II proposes that state courts use the framework for procedurally ineffective assistance recognized by the Supreme Court in United States v. Cronic (35) to find counsel procedurally ineffective when caseloads are higher than the national ABA maximums. Part III describes how procedural ineffectiveness claims would incentivize state and local governments to bring caseloads into compliance with the ABA maximums and fleshes out counterarguments to the proposal.

1. BACKGROUND: THE RIGHT TO (EFFECTIVE ASSISTANCE OF) COUNSEL

   In 1962, a man in a Florida jail cell wrote a note to the justices of the United States Supreme Court. (36) He was serving a five-year state sentence on charges of breaking into a pool hall and petty larceny. (37) He represented himself at trial because he couldn't afford a lawyer. (38) A year later, in 1963, that note led to the requirement that a lawyer be appointed for all felony defendants (39) in state court, even those who lack the ability to pay. (40)

   This Part will discuss the underpinnings of the constitutional right to counsel and the standard for ineffective assistance of counsel claims. Defense attorneys, per the Supreme Court, are "necessities, not luxuries." (41) Implicit within Gideon v. Wainwright, the case described above, are the ideas that guilt should not be determined by poverty and that the guarantee of counsel is necessary to prevent the miscarriage of justice. (42) Gideon relied on an egalitarian conception of the adversarial system: the Sixth Amendment requires a lawyer for all felony defendants because it requires that two sides zealously advocate to protect the principle of innocent until proven guilty. (43)

   Gideon didn't write on a clean slate. Though it was the first case to interpret the Sixth Amendment as providing a right to counsel for defendants in state court, it wasn't the first to find a constitutional right to counsel. Powell v. Alabama was the first case to identify a constitutional right to counsel, relying on the Due Process Clause of the Fourteenth Amendment. (44) Nine young black men were accused of raping two white women. (45) The three trials took one day, and all nine men were sentenced to death. (46) The lawyers appointed to represent them did not consult with any of their clients. (47) The Court held that the convictions could not stand. (48) The right to counsel encompassed more than a lawyer during trial (49)--it included a lawyer during the "critical period of the proceedings ... when consultation, thoroughgoing investigation and preparation were vitally important." (50)

   Powell's conception of the right to counsel stands diametrically opposed to current state indigent defense systems across the country. Clients are met just before arraignment or go unrepresented in arraignments, defendants choose between lawyers with incredibly high caseloads or no lawyer at all, and judges function like machines, processing 100 defendants a day. (51) The Court in Powell stated that the right to counsel was one of the "immutable principles of...