Local Governance and Redistributive Policy: Explaining Local Funding for Public Defense

Date01 June 2017
Published date01 June 2017
Local Governance and Redistributive Policy:
Explaining Local Funding for Public Defense
Andrew Lucas Blaize Davies Alissa Pollitz Worden
In many American states, public defense is provided at the county rather than
state level (Langton & Farole 2009). Local governments have discretion over
implementing and funding the right to counsel, resulting in considerable vari-
ability in programs and funding levels. Placing this issue in the theoretical
context of redistributive policies and politics, we investigate decisions on fund-
ing this service across upstate New York counties. Using as a point of depar-
ture Paul Peterson’s classic explication of community politics, we first model
variation in funding as a function of counties’ fiscal capacity, need for services,
and costs of supplying legal representation. We also test Peterson’s prediction
that local political factors will play little if any role in budget decisions. Second,
through interviews with program administrators we explore the characters of
twelve defender programs in which expenditures departed from the model’s
predictions. We find that three factorswhich we term “influence,”
“infrastructure,” and “ideas”—also vary directly with levels of funding. We
conclude with a discussion of the implications of these findings for theoretical
thinking about due process policies and local politics, and for policy debate
over how best to ensure adequate counsel in criminal court.
Scholars and advocates have long argued that counsel for indi-
gents accused of crime is underfunded (Lefstein 1982; Lucas
2005; Moran 1982; President’s Commission on Law Enforcement
and the Administration of Justice 1967; Spangenberg 2000; The
Constitution Project 2009). Historically, even as a series of
Supreme Court decisions expanded the scope of the right to
counsel, the Court left responsibility for organizing, administer-
ing, and funding indigent defense to state and local governments.
The resulting patchworks of policies, experts say, results in
We are grateful to the delegates who attended the 2013 Law & Society Association
Annual Meeting, held in Boston, MA, where an earlier version of this paper was presented,
and to the several anonymous reviewers who responded to our work. We also gratefully
acknowledge the assistance of providers of indigent legal services across New York with
data collection. The findings, analysis and discussion presented in this article are attribut-
able solely to the authors and do not reflect the official policy or position of the New York
State Office of Indigent Legal Services.
Please direct all correspondence to Andrew L. B. Davies, Director of Research, New
York State Office of Indigent Legal Services, 80 South Swan St., Suite 1147, Albany, NY
12210; e-mail: andrew.davies@ils.ny.gov.
Law & Society Review, Volume 51, Number 2 (2017)
C2017 Law and Society Association. All rights reserved.
services of widely disparate quality, often falling short of Constitu-
tional standards.
In the last 5 years, however, indigent defense has been added
to a growing list of criminal justice reform targets. Former U.S.
Attorney General Eric Holder has spoken out on the problems
facing defenders, and the Department of Justice has allocated
funding for research on the topic (Frederique et al. 2015; Her-
berman & Kyckelhahn 2014; Holder 2012). At the state level,
researchers have investigated the quality and costs of defense
programs (Anderson & Heaton 2012; Carmichael et al. 2015;
Hopkins & Labriola 2014); and lawsuits challenging the adequacy
of locally funded programs have been resolved with new resour-
ces, and new oversight, for defense providers (e.g., Hurrell-Harring
et al. v. State of New York 2014; Wilbur v. Mount Vernon, WA 2013). Yet,
there has been little systematic investigation of the economic and
political dynamics surrounding the funding of public defense.
Differences in defense services have been linked to changes
in case outcomes (Abrams & Yoon 2007; Miller et al. 2015) and
clients’ satisfaction with the legal process (Campbell et al. 2015).
Recent research suggests that funding is important: in Houston,
Brooklyn, and the state of Washington better funding was associ-
ated with improved service delivery, reduced defender caseloads,
speedier case processing, reductions in uncounseled guilty pleas,
improved trial outcomes for defendants, and improved defender
repute among local judges (Fabelo et al. 2013; Labriola et al.
2015; Luchansky 2010). While we know less about how resources
shape less readily quantifiable aspects of court process (such as
defendants’ experiences, and the cultures of defense programs
and courthouses) ethnographic studies have suggested that
defense services may be inflected by race (Richardson & Goff
2013; Van Cleve 2016), professional norms (Corbin 2015), and
institutional history (Mayeux 2016).
We investigate, across the 57 upstate New York counties, vari-
ation in public defense expenditures.
We frame our analysis
around the key observation that public defense is essentially a
redistributive policy—a policy that draws on public resources to
benefit disadvantaged populations. While legal scholars and advo-
cates frame indigent defense as a Constitutional right, in practice
the provision of counsel is, in many states, a policy problem
We define “upstate” to include the 57 counties outside New York City. We acknowl-
edge some would exclude Long Island and the ex-urban counties(Pollak 2014), but for pre-
sent purposes this distinction groups together all counties that are primarily responsible for
funding indigent defense and that do not operate under the distinctive criminal justice sys-
tems in New YorkCity.
314 Local Governance and Public Defense
involving organizational, administrative, and allocational decisions
(Davies & Worden 2009; Peterson 1981; Pruitt & Colgan 2010).
We report our findings as follows: In Part I, we describe New
York as a state whose indigent defense policies represent the
range of conditions that obtain across the nation. We develop
hypotheses about the relationships between county characteristics
and defense funding based on longstanding theoretical insights
about local decisions on redistributive policies. In Part II, we
describe the data and measures used to test these hypotheses, and
report findings from a quantitative analysis of expenditures. In Part
III, we analyze interviews with indigent defense agency heads in 12
counties which were outliers in our quantitative analysis. We con-
clude by addressing the theoretical and policy implications of our
Part I: Dimensions of Indigent Defense Policy
The Parameters of Indigent Defense in New York and the Nation
The Sixth Amendment to the United States Constitution
states that “In all criminal prosecutions, the accused shall ... have
the Assistance of Counsel for his defense.” The Supreme Court
has, over the years, interpreted this to mean that any defendant
who is unable to afford to pay for counsel, and who may face the
possibility of incarceration if found guilty, has the right to a law-
yer free of charge. Gideon v. Wainwright (1963) and Douglas v. Cali-
fornia (1963) established states’ responsibility to provide counsel
for indigent defendants facing felony charges and direct appeals
of conviction. Subsequent decisions expanded the right to include
most misdemeanors, juvenile proceedings, certain pretrial
appearances and limited postconviction proceedings. Most states
also provide counsel for indigents in some family law cases such as
state claims for termination of parental rights, child custody, abuse
and neglect, child support enforcement, and domestic violence,
though these policies vary across the states (Abel & Livingston 2008;
see also the National Coalition for a Civil Right to Counsel 2016).
The Bureau of Justice Statistics estimates around 80 percent of
criminal defendants are entitled to counsel at government charge
(Harlow 2000; see also Smith & DeFrances 1996). To our knowl-
edge, there are no reliable national estimates of the percentage of
family court parties who receive free representation.
New York’sright to counsel provisions are broader than those of many other states
(Abel & Livingston 2008). Because many states are moving toward the New York model, the
findings of this study may inform predictions about increasingly inclusive definitions of the
Davies & Worden 315

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