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

• Date: 01 June 2017
• Published date: 01 June 2017
• DOI: http://doi.org/10.1111/lasr.12266

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 factors—which 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)

V

C2017 Law and Society Association. All rights reserved.

313

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.

1

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

1

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

findings.

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).

2

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.

2

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

right.

Davies & Worden 315