A patchwork of policies: justice, due process, and public defense across American states.

• Author: Brown, Elizabeth K.

1. INTRODUCTION

   "In the end, a good lawyer is the best defense against wrongful convictions." (1)

   Adversarial systems are intended to discover the truth of an accusation through skilled combat over facts, evidence, and law. What adversarial procedures cannot guarantee, however, is that the truth will emerge from even the most balanced of competitions. In principle, the Constitution and procedural law are understood to err on the side of innocence--to establish the rules of the game in the adversary competition that favor defendants' fates over the state's interests in public safety and prosecution. Since the due process revolution of the 1950s and 1960s, this system bias was made more explicit through a series of rulings that clarified the procedural protections in the Bill of Rights. This movement turned a critical corner in 1963, when the Supreme Court asserted that "[t]he 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." (2) The right to legal counsel was widely regarded as the pivotal element in maintaining individuals' security against potentially coercive or careless authorities. While in 1949 Jerome Frank might have been accurate when he asserted that "facts are guesses," it seemed clear a few years later that the Court preferred that those "guesses" err on the side of defendants' claims of innocence. (3)

   The Supreme Court's establishment of a right to counsel was quickly followed by the development of model policies, best practices guides, and a growing consensus among legal professionals and advocates that the most accurate expression of the Court's intent would entail establishment of state-level (and state-funded) public defender offices, politically independent of both legislatures and local politicians. (4) However, having established the general right to counsel, the Court had rather little to say about how to deliver it, leaving states and local governments to devise systems that met budgetary constraints, and that were politically palatable in their own legislative and political environments. (5) Further, in the intervening decades, while the rules of criminal adjudication have become more complex, public opinion about crime and punishment has grown more cynical and alarmed, and the economic and social disparities often associated with involvement in the criminal justice system have become wider. (6)

   As a result, public defense remains a low-visibility, decentralized, and highly variable element of state court operations. While in all states systems have been put in place to ensure at least nominal representation in criminal prosecutions, the structure, funding, quality, and breadth of the right to counsel varies dramatically across states and localities. If counsel is critical to a principled and effective defense, then we must hypothesize that substantial variability in the characteristics of public defense systems produces substantial variation in the risk and the reality of erroneous convictions. We add that most studies suggest that at least eighty percent of criminal defendants are, by conventionally used criteria, determined to be indigent at the point of arrest, (7) so the systems established for the representation of the poor are, in effect, the systems that define and delimit due process for the nation at large.

   Hence, we argue that the structure of public defense policy has potentially significant implications for the quality of justice. We recognize the inherent problem in measuring the possibility of injustice: after all, if a state system routinely discourages active defense, is based on financial incentives, and produces outcomes that are difficult to appeal, we cannot document and quantify those miscarriages of justice. We can estimate their likely existence, however, just as we can estimate lives lost to higher speed limits, educations foregone due to more restrictive student loan policies, or homes foreclosed due to more exploitative lending policies. We premise this article on the argument that more professionalized, consistent, well-funded, and politically independent representation will tend toward more just outcomes. We acknowledge that is a premise worthy of empirical investigation in its own right.

   In this article we examine state policies on three key stages at which the right to counsel may be critical: bail hearings (that may set bail or establish charges); pretrial, plea, and trial hearings; and appeals of convictions. It is not our intention to provide an analysis of the legal reasoning that establishes the right to counsel (and explores its constitutional limits)--that has been done, and done well, elsewhere. (8) Our purpose is to examine the structure of state programs from a social scientific perspective to help better inform legal and policy debate on the topic. We shall first describe the dimensions on which public defense programs vary. We then outline the legal and logical arguments, and summarize the available empirical evidence about the value of legal counsel under varying economic incentives and structures, with specific attention to research that aims to explain how variation in right to counsel provisions affects case outcomes. Next, we consider the social science literature that suggests that political, cultural, and economic factors systematically shape the character of criminal justice policy, and specifically due process policy. We then turn to an inventory of state law and policy on the provision of counsel at these points, and we conduct an exploratory examination of the political and structural factors that may be associated with variation in state policies. Finally, we turn to a discussion of the varying sources of authority in the creation of policy in this critical area of due process, with some reflections on the prospects for reform.

2. THE DIMENSIONS OF PUBLIC DEFENSE POLICY

   The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (9) In court, the only person with a professional obligation to serve the best interests of the defendant is his or her attorney. Wrongful convictions, meanwhile, are often attributed to the commission of avoidable errors--mistaken eyewitnesses, coerced confessions, mendacious perjurers, or poor work by defense attorneys. (10) Inasmuch as defense attorneys may be assumed to play a role in avoiding such errors, it is not unreasonable to ask how it is possible to assure that poor defendants are represented effectively.

   Public defense in the United States varies on several dimensions that advocates have suggested are critically related to the quality of services provided. Most interested commentators contend that public defense is in a state of perpetual crisis due to a lack of funding, a lack of the proper economic incentives for defenders, failures of states to oversee public defense systems or assure quality, and systemic failure to provide any representation at certain key stages of criminal processing. (11) Low funding levels, they argue, result in high caseloads and insufficient attention to individual cases. Improper funding models (such as those that pay attorneys per case) give attorneys an incentive to conclude cases as quickly as possible, and omit proper investigation. (12) A lack of oversight from the state permits the development of a patchwork of defense service providers across the state, each of whom may provide service of different qualities. And systemic failures at certain stages--particularly pre-trial stages, where representation is not strictly required, and appeal, where specialized skills may be needed--may prevent defenders from serving their clients as effectively as possible.

   Defender systems also vary in terms of the locus of political responsibility for the making of key policy decisions. Historical records indicate that prior to Gideon, some communities had adopted the practice of providing legal assistance for poor defendants facing serious charges as early as the 1940s. (13) Rarely, state legislatures established a right to counsel; by 1948, Kentucky had legally mandated counsel to poor defendants. Almost invariably that assistance was provided by local lawyers, assigned (typically pro bono) by trial judges. (14) As the right to counsel was firmly established by the United States Supreme Court, these ad hoc models were the most familiar and least disruptive service delivery model, and hence became the default setting against which advocates compared more progressive alternatives. (15) Thus, the state of affairs that prevails to this day: states are not only permitted broad discretion in key policy decisions, such as how much they pay for defender services, but they may also choose to devolve responsibility for such decisions--and, indeed, for the provision of defender services themselves--to the local and county level. In other words, states not only vary among themselves; they may also, at their discretion, permit further variation within themselves.

   Key dimensions to consider when describing state variation in public defense systems, then, include both financing...