The Pursuit of Justice:
The Contemporary State of
Indigent Defense in America
Zachary Newman, UC Santa Cruz
Abstract: The purpose of this research paper is to report on the current state of the indigent defense system in the US, to ascertain as to whether or not it provides the most effective and competent services possible and to offer recommendations for improvement. Research was conducted through journal databases, such as JSTOR, newspaper articles, from sources like The New York Times, and online reports. Findings led to the thesis and conclusion of this paper that the current indigent structure is inadequate and prevents the provision of high-quality or adequate legal counsel to indigent individuals and inhibits access to justice based on socioeconomic background. Because of issues that include underfunding, excessive caseloads and lack of resources, it is evident that reform is necessary, despite the recent federal attempts at change through the Access to Justice Initiative at the DOJ. To reform the system, legislative and litigative strategies can be employed, as well as furthering and ensuring the implementation of the Access to Justice Initiative, which is culturally and legally representative of the right track for reform. In addition, the paper includes a case study of the indigent defense system in New York City.
Biography: I am a senior Politics student at the University of California, Santa Cruz. I produced this project in Washington, D.C. on the UCDC program, where I was in a research course, in addition to an elective on Lobbying and Influence in Washington. During this time, I completed the twelve-week CLIP (Criminal Law Internship Program) internship at the Public Defender Service of DC, where I was an investigative intern for two attorneys for three months. I am from the San Francisco Bay Area. Last, as an additional side note, an adapted version of this paper was recently featured in the winter 2012 edition of the “Washington Undergraduate Law Review” from the University of Washington.
Table of Contents
1. Introducing, 3-5
2. Situating Indigent Defense Within the Context of the Criminal Justice
System Overall: Incarceration Rates, Racialization and Costs, 5-8
3. Problems, Concerns and Failures in Indigent Defense in the Present Juridical Moment, 8-17
4. Avenues for Reform: Legislative and Litigative, 17-28
5. A New York City Case Study: Specificities and National Trends for Indigent Defense, 28-32
6. Concluding: An Internship with the Public Defender Service of DC—Patterns, Implications, Endings, 32-35
The Pursuit of Justice: The Contemporary State of Indigent Defense in America
In this research paper I will discuss the contemporary indigent defense system in the US. Indigent is a legal term that refers to anyone who cannot afford their own attorney and, thus, indigent defense refers to the state or court providing an attorney to low-income individuals. I will argue that there are major problems with the current indigent defense system that need to be addressed including underfunding, excessive caseloads and lack of resources. In addition, I find that legislative (political) and litigative (legal) means are both routes to achieve reform in the system. The following paper is divided into three sections. The first describes my main argument in greater detail, situates indigent defense within the larger structure of the criminal justice system, shortly describes the importance of race within both systems, and discusses the current problems facing indigent defense and why reform is necessary.
The second section explains the avenues for reform, through both legislative and litigative means, including a discussion of the Department of Justice’s 2010 project, the Access to Justice Initiative, as well The Constitution Project’s 2009 report Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel. Last, I will provide a case study of the New York City indigent defense system, describe my own experiences working for the Public Defender Service of DC and explain why the DC indigent defense program is one of the best in the country. To conclude, I will summarize and explain the theoretical and practical significance of my findings, repeat my thesis and describe my predictions for the future of indigent defense and where the system stands in the context of the country and the political and social moment as a whole.
The Supreme Court’s 1963 decision Gideon v. Wainwright ensures legal representation to those who cannot afford a lawyer. With Gideon, the Supreme Court proclaimed “any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided” (“Gideon’s Promise Unfulfilled” 2062). This ruling, along with subsequent law and policy, intends to secure and enforce the original command of the Constitution that all deserve access to representation and justice and must not have to confront the government alone in the legal system. Contemporarily, however, this fundamental American ideal, as well as the mandates of Gideon, are not being upheld: low-income individuals who cannot afford a lawyer are being forced to face the state without a lawyer or with a lawyer that is underpaid, overworked or lacking resources, thus undermining their ability to provide competent and effective legal services. This group of low-income individuals is not small: over 80 percent of defendants in criminal cases cannot afford their own lawyer (Shapiro 2010; Glaberson 2010). These lawyers do not have the time or resources to adequately prepare for a case and cannot perform fundamental actions like filing motions, preparing for trial or hiring experts (“Indigent Defense Reform” 2011).
Because of these types of factors, dealing primarily with a general lack of resources, time and funding, the current indigent defense system does not uphold the ideals of the Constitution, does not respect Gideon, prevents access to justice and quality legal representation for low-income indigent people, and increases rates of incarceration, plea bargains and convictions of the innocent. The indigent defense system is in “crisis”, in the words of Attorney General Eric Holder, and the crisis “appears as difficult and intransigent as any now before us” (Shapiro 2010). According to a report produced by the American Bar Association (ABA), “indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful convictions” (Criminal Justice Transition Coalition 138). Additionally, “Gideon’s Promise Unfulfilled” finds that the system is in “a state of perpetual crisis” (Harvard Law Review 113.8,2000, 2063). In order to move forward and fix the problems of this system, both litigative and legislative strategies need to be employed to reform the system so that all can access the quality legal representation that they deserve under law and right, in the pursuit of justice.
2. Situating Indigent Defense Within the Context of the Criminal Justice System Overall: Incarceration Rates, Racialization and Costs
A discussion of the indigent defense system is situated within the context of the criminal justice system as a whole. If the supposed purpose of the legal system is to fairly and justly try and incarcerate individuals for committing antisocial crimes, from drug sales to murder, in order for that system to function, it is important that the accused have access to quality legal representation. This is true because, with the Sixth Amendment and Gideon, the Founders along with the Supreme Court find that access to legal counsel is pivotal for the legal system to work, indiscriminately, for all. In the current criminal justice and carceral system, according to the “World Report 2011: United States” by Human Rights Watch (HRW), at the beginning of 2009 the US maintained its top rank of incarcerated individuals, at 2,297,400, and the highest rate of per capita incarceration, at 748 prisoners per 100,000 residents (2011). Furthermore, Black non-Hispanic males are incarcerated at a rate of more than 6 times that of white non-Hispanic males and 2.6 times as often as Hispanic males (HRW 2011). In addition, in 2009, 1 in 10 (10 percent) Black males from 25-29 were in prison or jail, while only 1 in 64 (1.5 percent) white males were incarcerated (HRW 2011). Despite President Barack Obama’s 2010 signing of the Fair Sentencing Act that revised the federal government’s stance on the difference between crack and powder cocaine, which has historically lead to extreme racial disparities in sentencing, there are still radical imbalances in drug convictions (HRW 2011). Even though Black Americans are 13 percent of the population, they make up 44 percent of individuals convicted of drug felonies in state courts and 37 percent of individuals incarcerated in state prisons on drug charges (HRW 2011). These data indicate the immense importance of race as related to sentencing and incarceration.
Race needs to be recognized for the important role it plays in indigent defense and the justice system overall. Lisa Frohmann’s “Convictability and Discordant Locales” discusses how micro-level situations are connected to organizational practices, such as the convictability standard, and how this operates in conjunction with larger structures of socioeconomics and race (Law & Society Review 31, 1999, 531-2). There are varying languages, lenses and terms applied to different individuals and defendants based on who they are perceived to be. This type of analysis and bias in identifying a person inevitably alters verdicts, convictions and, consequently, systems and theories of defense. Her term “discordant locales” refers to this process by which individuals, bodies and identities are constructed by the prosecution (553). To Frohmann: “By ascribing stereotypical characteristics of a neighborhood to victims, defendants, and jurors, prosecutors construct distinct groups with different cultures who live in geographically separate areas” (533). Frohmann finds that, because of discordant locales, “certain people are more likely to be excluded from justice” (553). Mapping certain values and behaviors through normative and ideological images creates generalizations and stereotypes. Because of the specific racialized bodies (African-American and bodies of color generally) onto which cultural conceptions of crime, guilt and incarceration are associated with and codified into, race is of the utmost importance in the indigent defense system and the criminal justice system as a whole.
As for other relevant statistics, 35 states in the US impose the death penalty as of 2010, and 52 people were executed in 2009 (HRW 2011). In the recently high-profile case of Troy Davis in Georgia, there were serious doubts regarding his guilt in committing the murder of a police officer and all except for two of the prosecution’s non-state witnesses recanted or contradicted testimony (“I am Troy Davis” 2011). Furthermore, the Innocence Project reported in February 2010 in 250 Exonerated, Too Many Wrongfully Convicted that of 250 DNA exonerations the average time before release was 13 years, for a total of 3,160 years of inaccurate and unjust incarceration (2-3). Last, there are 2,574 youth offenders (younger than 18 when alleged crime was committed), serving life sentences without parole (HRW 2011).
In the 2008 report Smart on Crime, the Criminal Justice Transition Coalition outlined seven principles the legal system should abide by. In terms of the listed principles that are directly relevant to indigent defense, the first is fairness and accuracy; the second, the elimination of disparities; the sixth, effectiveness; and the seventh, cost (Smart on Crime x-xi). First, fairness and accuracy refers to the necessity that all have access to legal “safeguards” and services, including the assumption of innocence, capable counsel and access to trial (x). Second, the elimination of disparities describes the criticality of government removal of policies, such as the recently changed legal difference between crack and powder cocaine, that generates racial disparities in the judicial system (x). The sixth is that the practices and actions within the justice system must be subjected to evidence-based standards of efficacy, accuracy and impartiality: through objective and scientific evaluation, problems with systems, such as misidentification issues, can be improved and altered, decreasing innocent convictions and recidivism (xi). The seventh describes how expensive the current system is, as, currently, the prison system costs taxpayers more than $60 billion per year and predominantly incarcerates nonviolent offenders (xi).
To the Criminal Justice Transition Coalition, “costs will continue to increase absent significant reforms” and, in the context of the recession and increasing debt and deficit, “it is essential to review the cost of the criminal justice system to all Americans” (Smart on Crime xi). In sum, to David Cole in “No Equal Justice,” “We respond to crime today in a self-defeating way, by stigmatizing criminals, cutting them off from their communities” (Connecticut Public Interest Law Journal 1.1,2001, 31). In addition, he finds that “to rebuild communities, we must forgo our reliance on mass incarceration” (31). In this, Cole makes the point that the current judicial and carceral systems produce anti-community and non-rehabilitative approaches that increase incarceration rates and vilify certain community members, such as released felons (31). Within this frame of high rates of conviction, youth incarceration without chance of parole, anti-community and non-rehabilitative measures, plea bargains and general incarceration, and executions and innocent exonerations, as exemplified in the case of Troy Davis, the threat that the criminal justice system poses to people (particularly African-Americans) who do not have access to competent legal counsel is serious and severe. This system cannot be recognized as a socially and ethically valid system if low-income individuals are unable to access quality legal representation within it. In this system, indigent defense plays an immense and pivotal role.
3. Problems, Concerns and Failures in Indigent Defense in the Present Juridical Moment
In this context, in February of 2010, at the first-ever Department of Justice (DOJ) National Symposium on Indigent Defense, Attorney General Eric Holder declared that, in the near 50 years since Gideon, the law has “yet to be fully translated into reality” (Holder 2010). To begin, the central issues concerning the indigent defense system include, first, the fact that individuals may not have access to a lawyer (Holder 2010). For example, if immigrants seeking asylum to escape persecution or torture in their country have a court-appointed lawyer, they are 3 times as likely be successful than if they do not (“About the Initiative” 2011). Second, even when people do have a lawyer, however, these lawyers do not have sufficient recourses or oversight (Holder 2010). Furthermore, public defender programs are underfunded and cannot file necessary motions, run fact investigations, or have time to try to obtain more funding, while, in some parts of the country, there are no programs at all (Holder 2010). Attorneys have too large of caseloads, where the annual caseload can be from 500 to 900 felony cases and over 2,000 misdemeanors, which is at least 5 or 6 times the amount established by the National Advisory Commission on Criminal Justice (some New Orleans defenders had 19,000 cases a year and thus 7 minutes per case) (Holder 2010; “About the Initiative” 2011). Because of this, attorneys cannot thoroughly interview their clients and, in some cases, clients do not meet their attorneys until the day they appear in court: (“About the Initiative” 2011; The Constitution Project xii). Indeed, defendants can stay in jail for weeks or months without even being appointed a lawyer (The Constitution Project xii).
Attorney General Holder states that “the prosecution and the defense can, and must, share the same objective: Not victory, but justice” (Holder 2010). In agreement with this, Phyllis Mann, in “Ethical Obligations of Indigent Defense Attorneys to Their Clients”, states: “Judges, prosecutors, and defense attorneys are all equally responsible to ensure that indigent clients receive ethical representation” (Missouri Law Review 75.3,2010, 747). Despite adversarial positions in the criminal justice system, the government and the defense are both part of ensuring that justice is accessible. Laurence Tribe, the first Senior Counselor for the Access to Justice Initiative at the DOJ, stated at the White House Conference on Closing the Justice Gap for America’s Working Families: “Justice is, quite simply, the cornerstone of American democracy” (Tribe 2010). The issue of indigent defense is not just yet another arbitrary issue but is, rather, one dealing with constitutional rights and whether or not the fundamental principles of American democracy are actually being maintained in any real sense. Despite social and political division, “we should be able to agree,” says Tribe, “that justice must be available not simply as an abstract philosophical ideal, but as an everyday reality” (Tribe 2010). In agreement with Tribe, Cara Drinan states in “The National Right to Counsel Act” that “the Sixth Amendment right to counsel has yet to be realized for most indigent defendants across the country” (Harvard Journal on Legislation 47, 2010, 489). Tribe and Drinan here articulate the key point that indigent defense is fundamental to the American political and legal systems and without adequate and competent representation for low-income individuals, the ideals and philosophies of American democracy, justice and liberty, along with an understanding that the judicial and carceral system is fair and impartial, will be rendered questionable.
Furthermore, at NYU Law, the Brennan Center for Justice’s 2008 report Eligible for Justice articulates the same theses as Holder, Tribe and The Constitution Project: it would be erroneous to claim that the Supreme Court’s Gideon ruling has been completely upheld. The Brennan Center’s “Indigent Defense Reform” states that despite “the clear and just ideal” of the Constitutional vision of access to justice and representation, “many low-income people facing the prospect of incarceration are forced into court either without lawyers, or with lawyers who are woefully overburdened and under-resourced” (2011). Moreover, in 2009, Caroline Fredrickson of the ACLU Washington Legislative Office stated: “The American judicial system is rooted in granting ‘Equal Justice Under Law,’ but that principle has been under assault as the legal services provided to the least fortunate have withered” (ACLU 2009). The criminal justice system, to Fredrickson, only offers quality legal representation to those who can afford it, which is an inherently unjust phenomenon (ACLU 2009).
Similarly, in “Broke and Broken: Can We Fix Our State Indigent System?,” Rodney Uphoff concurs with Fredrickson, Drinan and others(Missouri Law Review 75.3,2010). Supreme Court Justice Black proclaimed during the Gideon trial that, in the American judicial system, “every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him” (Uphoff 667). As a response to this statement, 45 years later Uphoff writes: “Sadly, as numerous reports, individual state studies, and articles demonstrate, this ‘noble idea’ represents only a cruel illusion” (667). This is because, to Uphoff, defendants are appointed to “undertrained, under resourced lawyers who are under prepared - or at times totally unprepared - to conduct the defense of their clients’ cases” (669). Moreover, “Gideon’s Promise Unfulfilled” states that “the low quality of indigent defense fundamentally calls into question the overall fairness of the criminal justice system” (2065). Because over 80 percent of criminal case defendants need court-appointed lawyers, if there are significant problems in appointing these individuals lawyers, then there will consequently be severe problems within the legal apparatus overall (Shapiro 2010). Despite this large proportion, for example, according to a DOJ survey, the total expenditures in 1999 for 4.2 million cases in 100 counties was $1.2 billion; only 3 percent of that ($38 million) was used in indigent defense proceedings, even though a majority of criminal cases require the provision of counsel (George 309). Thus, despite the fact that so many people need defense attorneys, indigent defense budgets and expenditures are meager and vastly disproportionate to that of the prosecution.
In “Cash Squeeze Said to Deny Legal Aid to Poor,” John Schwartz quotes the president of the nonprofit agency the Legal Services Corporation (LSC), Helaine Barnett, as stating: “There still exists a substantial justice gap in this country”(The New York Times 2009). Congress funds the LSC to operate more than 900 legal aid offices that serve low-income individuals (Schwartz 2009). The agency provides federal grants to these legal aid offices that provide most of the free legal aid services to indigent clients (“Addressing the Justice Gap” 2011). The LSC produced a 2009 report finding that legal aid clinics are unable to provide services to about half who need their services (around a million people); in addition, these numbers are basically the same as their 2005 report, indicating a lack of prioritization and motivation for change regarding low-income defense and legal aid (Schwartz 2009). Overall, over 50 million people qualify for federally-funded legal assistance but, because of low funding, about half of this group cannot get the counsel they need (“About the Initiative” 2011). The director of the Brennan Center described the lack of access to legal resources as “increasingly acute” (Schwartz 2009).
To James George in “Access to Justice, Costs, and Legal Aid”: “Access to legal services for indigents and middle-income people has not been a significant issue, although the Legal Services Corporation remains under attack” (The American Journal of Comparative Law 54,2006, 294). Despite the fact that the LSC received $390 million in 2009 from Congress, an increase from $350.5 million in 2008, this increased funding only made up for how much the agency had lost from decreased state government and private source financing during the recession (Schwartz 2009). The LSC’s director of government relations and public affairs, John Constance, finds that “federal dollars are doing nothing more than filling the space left by state funding” (Schwartz 2009). Even though the current budget is up from 2009 to $404 million in 2011, it is still a third less than it was at 15 years ago (“Addressing the Justice Gap” 2011). For 2012, the House Appropriations Committee is proposing to cut this budget back to $300 million, below even the low 2008 levels, which would exacerbate the fact that half of the individuals who seek aid from legal aid offices cannot receive assistance (“Addressing the Gap” 2011). Last, even though most low-income individuals cannot outright afford legal counsel for non-criminal cases, such as for defending their interests amidst exorbitant foreclosure numbers during the 2008-09 recession, defendants in civil cases are not constitutionally guaranteed counsel (“Addressing the Justice Gap” 2011; George 312).
At least every five years there is a report describing how Gideon is not being upheld and that there are significant inadequacies in indigent defense (“Gideon’s Promise Unfulfilled” 2064). Logically, if this right were being upheld those with appointed counsel would not have remarkably different success rates than those with private counsel. For example, in Houston in 1999, 58 percent of defendants with appointed lawyers were sentenced to jail or prison, while the sentencing rate was only 29 percent for defendants with private lawyers (“Gideon’s Promise Unfulfilled” 2064). The fact that Gideon’s mandate is not being respected throughout the country is not new news according to The Constitution Project’s 2009 report Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (xi). The Constitution Project raises the same issues as Holder and others: according to the Preface of the report, “there is uncontroverted evidence that funding still remains woefully inadequate” for indigent defense and “is deteriorating in the current economic difficulties” of the recent recession (xi). Underfunding results in unacceptable levels of training, supervision, salaries, and staffing for public defender programs; lawyers are forced to violate their bar oaths for their duties to clients under the rules of professional conduct because of how large their caseloads are (The Constitution Project xi).
In fact, Mann states that there is not really a national indigent defense “system” at all because each state and jurisdiction devises its own structure; oversight is thus difficult, if possible at all without a fully nationalized system (715). Each jurisdiction decides how to approach issues that include the “administration, funding, and service delivery model by which they provide representation,” “the individuals who receive that representation” and “the celerity with which counsel is appointed” (715). In the post-Gideon period, the federal government and courts have not exercised any substantial control over or intervention into each state and jurisdiction’s management and application of federal mandates (716). There is thus little federal oversight, which has allowed some states and jurisdictions to lack a real indigent defense system (The Constitution Project xi). This is, however, a federal issue and states should not be able to simply abandon or underfund a Constitutionally guaranteed right to counsel.
Mann explains that the American Bar Association (ABA) Model Rules of Professional Conduct apply to all lawyers, according to the means and needs of each specific field, and require them to be competent, where competent representation means “reasonably necessary” (738). This idea of “reasonably necessary” competency is vague and abstract but there are, nonetheless, specific and concrete defense standards to make sure a lawyer is “prudent and competent” (738). For example, according to The Constitution Project and their third principle for systemic innovation (“experienced practitioners serving pro bono”), there is evidence that public defenders are now, more than in the past, ready to say that they are unable to fulfill their duties to meet the ABA standard (143). In this way, defense attorneys conceding and admitting that there are issues that make them incompetent, such as excessive caseloads, is part of allowing for litigative strategies to proceed and for violations of rules and standards to come to light. There is a duty for lawyers to withdraw from representation if they are incompetent and rules are violated, which is a risk to that specific attorney but necessary to show that they are incapable of performing adequately (The Constitution Project 144).
Mann speaks to three common ethical obligations that are violated, which correspond with the issues already raised: one, lack of independence, two, lack of time, and three, lack of resources. First, independence is important for attorneys to make their own decisions. The Constitution Project also notes that there is “a lack of independence for defenders and the management of their responsibilities” (xii). Second, regarding lack of time, the 1973 national standards dictate that an attorney should not work on more than 150 felonies or work for more than 13 1/3 hours per felony case in order to “accomplish all of the categories of work that the indigent defense attorney must be prepared to accomplish in each case” (742). This is the maximum amount of cases and time spent per case that would allow that attorney to accomplish everything necessary to provide competent counsel (742). Third, for the lack of resources, a defense attorney has to hire their own investigator if they are not provided one; not having one severely limits the probability of a lawyer understanding a case and designing a defense based on specific facts and data (743). An attorney would also have to pay to hire experts for the case who could provide precise explanations for aspects of an event, such as weaponry by firearms experts or mental states by psychologists (743). Attorneys may have to pay for their copies, gas, or phone calls; because budgets and resources are often so small, these types of quotidian expenses are unaffordable and if attorneys want them, they have to pay for it themselves (Mann 743). If there is a lack of resources and an attorney has to pay for these expenditures, it means that if they cannot actually afford it or do not want to pay (especially because of issues around compensation), then that part of their case will be lacking. Making attorneys choose to fund or not fund their own investigation, experts and activities like copying and driving severely limits the quality and competency of defense. These are, moreover, violations of the ethical codes: when an attorney cannot provide such imperatives in their counsel, then it means that they are not adhering to the rules and providing levels of quality that they must.
In sum, there are important problems within the indigent defense system. With “Some Reflections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid,” Hilary Sommerlad describes the relationship between citizenship, justice and democracy (Journal of Law and Society 31.3, 2004, 366). She states that contemporary Western society is built on, firstly, “the establishment of a substantive right of access to law, and, secondly, on the development of a neoliberal form of social ordering and resulting erosion of that right of access” (366). In addition, Sommerlad writes that “whereas the objectives and normative underpinnings of social citizenship are inclusion”, “the privatized citizenship model which now predominates has a strong tendency towards substantive inequality and hence social and political exclusion” (366). In addition, this resonates with Frohmann’s discussion of discordant locales and the relevance of race in exclusive practices in the legal system. Sommerlad’s point ties all of the issues of the indigent defense system back to a sense of socioeconomics and the means through which, economically, low-income individuals are excludedfrom law, access to justice and competent legal services. In this sense, the current economic situation (which Sommerlad describes as “neoliberal”) is precisely the logic through which the indigent defense system loses its support and funding. This larger economic context provides a transition from what the issues of the system are to discussing actual, necessary and serious reform.
4. Avenues for Reform: Legislative and Litigative
Both legislative and litigative strategies are important avenues for reform. First, for legislative action, the DOJ’s Access to Justice initiative was announced at the aforementioned February 2010 DOJ National Symposium on Indigent Defense. The conference featured over 200 indigent defense experts, whose flights to Washington the federal government paid for (Shapiro 2010). In Attorney General Holder’s speech at the conference, he states: “I have asked the entire Department of Justice… to focus on indigent defense issues with a sense of urgency and a commitment to developing and implementing the solutions we need” (Holder 2010). The conference adopted Resolution 8, which ensures that an Access to Justice Commission will be started in every state and territory (“About the Initiative” 2011). The initiative planned to work with indigent-defense advocacy groups and public defenders “to address the crisis in the provision of indigent legal defense” (“About the Initiative” 2011). The three principles of the Access to Justice Initiative are: Promote Accessibility through “eliminating barriers that prevent people from understanding and exercising their rights”; Ensure Fairness by “delivering fair and just outcomes for all parties”; and, third, to Increase Efficiency by “delivering fair and just outcomes effectively, without waste or duplication” (“About the Initiative” 2011). The four main strategic goals include: expanding research on the delivery of indigent defense; encouraging comprehensive planning and reform; increasing training and technical assistance for defender programs; and strengthening juvenile justice (“About the Initiative” 2011).
These four areas of focus are required for successful reform. Collaborating with the National Institute for Justice and the Bureau of Justice Statistics, the first point calls for increasing data regarding indigent defense systems and, empirically and objectively, deciphering what is the most effective means to enable greater access to quality legal services (“About the Initiative” 2011). The second point means engaging with state judges to generate comprehensive and extensive indigent defense reform; the third, the use of grants, training and technical assistance programs to increase the capabilities, budgets and resources of indigent defense agencies; and the fourth, to ensure access to lawyers for juveniles who risk waiving counsel or entering guilty pleas without legal advice (“About the Initiative” 2011). Fifth, the initiative works with courts, law schools and the bar to develop different tactics to involve non-lawyer-intensive solutions, so that more nonlawyers and social workers can assist in generating solutions to the crisis (“About the Initiative” 2011).
In agreement with the first focus of the Initiative, establishing oversight commissions to independently and objectively monitor the flaws and issues of an indigent defense program in a specific state or county is important. Because the system is not national and states design their own systems, oversight bodies within states ensure quality indigent defense (Mann 715). 42 states have supervisory authorities to monitor their indigent defense programs or a state agency that provides counsel directly; 27 of these states have a public defender agency (The Constitution Project 148). In all of these states except two (Louisiana and South Carolina), nearly all of the funding for indigent defense comes from the state (148). Eight states, including New York, do not have a statewide oversight agency, while eight other states, including California, have neither an oversight agency nor a statewide public defender at all (149). Nine states have partial authority oversight agencies that place control in the hands of the counties for administrating and monitoring indigent defense provision (148). These oversight agencies need to be independent and produced through “careful planning and political fortitude” (148). These data indicate the diverse array of ways that states approach indigent defense.
Overall, oversight is important according to The Constitution Project because, for a state or independent commission to ensure that indigent defense representation is effective and of a high caliber, it must observe and monitor said system (148). To The Constitution Project, the purpose of oversight bodies are to “protect the independence of the defense function from political and judicial interference and ensure quality representation” (158). This emphasis on oversight and monitoring relates back to the practical evidence-based standards, objectivity and rigorous evaluations that the Criminal Justice Transition Coalition discusses in Smart on Crime as their sixth principle for making the judiciary system function to the highest standards (xi). This type of objective oversight would allow for increased assurance that the ethical duties of defense lawyers are adhered to, as Mann speaks to. As an example of successful legislative action, passed in 2001, The Texas Fair Defense Act attempted to address potential conflicts between state oversight and local control over criminal justice and gave the Texas Task Force on Indigent Defense partial authority over indigent defense in the state (The Constitution Project 156). The purpose of the Task Force is to: “mandatory minimum standards to enhance the quality of indigent defense,” “monitor compliance with these standards,” and “distribute state funds to counties in compliance” (156). In Fiscal Year (FY) 2002, only 7 counties had public defenders; by FY 2008, it was up to 15 (156). The Task Force declared that the number of people receiving services increased by 38% (156). Indigent defense spending in the state went from $114 million in FY 2002 to $174 million by FY 2008 (156).
Strong opposition can deter legislative action for reform. According to The Constitution Project, the failure of reform projects can be caused by a “lack of political resolve, refusal of localities and local judges to cede control of their systems to state authority, and state unwillingness to pay for indigent defense” (154). For example, Mississippi passed a bill in 1998 to create a statewide and state-funded indigent defense system that was monitored by a commission (154). The system never received any funding and the bill was repealed by 2000 (154). In Mississippi, “legislative reform has consistently failed to garner sufficient support”: it is the only state to reverse such a decision to create a system and, as of 2005, is last in indigent defense spending, despite “shamefully inadequate” trial counsel (154).
The Mississippi Public Defender Task Force was started by legislation in 2006 to research the indigent defense system, and has continually recommended the establishment of a statewide, state-funded defense system that is monitored by a board (The Constitution Project 154). Despite these types of recommendations, in 2007 legislative action still failed as a bill failed to pass committee (154). By 2011, all that has happened is that this Task Force has remained in operation and their duties increased to include other groups, such as juveniles; still, however, “the state’s persistent failure to improve and adequately fund indigent defense will likely ensure that services at trial remain woefully insufficient” (155). Similarly, Alabama has been unable to create a statewide and state-funded indigent defense project, despite a 2006 bill drafted by the Indigent Defense Task Force, started by the Chief Justice of Alabama Supreme Court (155). There was an attempt made in 2001 as well, in which another bill for statewide indigent defense was also killed (155). In New Mexico, instead of the bill dying in the legislature, like in Mississippi and Alabama, the governor vetoed it after it passed (155). In addition, local bar administrations, despite the possible ethical conflicts, can be hostile to improvements because it could take away their power and centralize it more in the administration of the state or jurisdiction (154).
Last, in “Epiphenomenal Indigent Defense”, Darryl K. Brown raises the point that “indigent defense funding is epiphenomenal” (Missouri Law Review 75.3,2010, 929). Epiphenomenal here means that indigent defense funding is a secondary byproduct, a dependent variable, to “a set of causal agents that vary across jurisdictions, making defense provision resistant to stable political consensus and operational implementation” (929). Instead of being based on factors like felony or incarceration rates, indigent defense funding is more contingent upon causal agents from politics and the criminal justice system as a whole (929). According to this logic, indigent defense funding is “volatile” (929). Brown finds that “states could achieve more stability in indigent defense through statutory commitments, such as wider use of public defender offices over appointed counsel systems” (930). Brown agrees with the respective Task Forces from Alabama, Texas and Mississippi: establishing stable, long-term and statewide and statutory systems, particularly the public defender office model, will make the system subject to less strain, defunding and unpredictability. Only through such a statutory commitment, as has been denied in Mississippi and these other states, does Brown find that the central issues of indigent defense can begin to be resolved.
In terms of the third focus of the Initiative, implementation of grants and training and technical assistance programs are an important part of the Access to Justice Initiative. These grants and trainings are available to a multitude of agencies and organizations, including defender agencies, research institutions and non-profits attempting to improve the indigent system (“Grant Information” 2011). For example the Bureau of Justice Assistance (as part of the DOJ) and the Center for Court Intervention provide a training for Drug Court Statewide Technical Assistance (“Grant Information” 2011). This program “provides a culturally competent and user-friendly national training and technical assistance program to strengthen statewide drug court systems” (“Grant Information” 2011). It represents an institutional recognition of a lack of technical aptitude within drug courts and attempts at mediating this through training in court technical procedures to enhance the quality of court proceedings. A second example is the Regional Network of Mentor Community Courts, which is a program funded by the Bureau of Justice Assistance with the Center for Court Innovation (“Grant Information” 2011). This program selected courts in Dallas, Hartford and Seattle to act as “regional mentors for jurisdictions seeking to improve their handling of low-level criminal cases” (“Grant Information” 2011). Other examples of grants provided demonstrate an indirect support of indigent defense services. Arguably, by affecting recidivism and the carceral system, the indigent defense system is changed, in terms of the reduction of caseloads and other factors. As such, the Bureau of Justice Assistance, along with The Pew Charitable Trusts and others, provides funding for the Justice Reinvestment Project (“Grant Information” 2011). In this project, state policymakers work with expert consultants and justice reinvestment staff to develop “fiscally-sound, data drive criminal justice policies to break the cycle of recidivism, avert prison expenditures and make communities safer” (“Grant Information” 2011).
Similar to the fifth area of focus for the Initiative, that courts, law schools and the bar all need to be involved in reform and that “non-lawyer-intensive” solutions need to be produced, the editorial “Addressing the Justice Gap” also finds that nonlawyers need to have an increased role in addressing the justice gap by performing tasks that are necessary but do not require the time and skill of an actual attorney, such as, in the civil arena, processing uncontested divorces(“About the Initiative” 2011; The New York Times 2011). This can ensure that the time of attorneys is always dedicated to matters that cannot be resolved by nonlawyers. In addition, the editorial also discusses the role of law schools, loan forgiveness programs for public interest lawyers and, as recommended by the Carnegie Foundation, that all law students have experience in public advocacy (“Addressing the Justice Gap” 2011). In fact, only two-thirds of law students that graduated in 2010 have a job in which their law degree is required; that other third, which is around 15,000 lawyers, could be employed in the public interest legal sectors assisting low-income individuals who need representation (“Addressing the Justice Gap” 2011). The article, however, remains vague and does not specify how exactly this mass of lawyers can be utilized. To close, with these examples of success and failure regarding legislative action, it is clear that legislative action is a fundamental tactic for addressing the issues of indigent defense. Programs such as the national Access to Justice Initiative, the work of the Task Forces from different states and the suggestions of reports, articles and journals are all positive steps and create trends, principles and ideas for how to improve this system through legislative means.
Alternatively, the other tactic for reform is the litigative route. “Gideon’s Promise Unfulfilled” finds that, nationally, courts and legal systems will only alter their approach if the system is perceived to be in crisis (2078). The authors argue for a “judicial intervention” strategy (“Gideon’s Promise Unfulfilled” 2079). The strategy proceeds through the legal apparatus itself and through individual court cases, just as Gideon did. In the context of aconstantlack of funding, throughout history the indigent defense system has employed litigative strategies to make demands for issues including compensation, indigent defendants’ rights or how overworked attorneys are (The Constitution Project 104). For example, in 1990 the Oklahoma Supreme Court ruled in State v. Lynch that if attorneys did not receive “sufficient, speedy, and certain compensation”, the due process of law clause of the state would be violated (105). The logic behind this litigation for better compensation is that, if they are paid more for their time, lawyers can provide more effective and adequate representation (108). Further, in New York County Lawyers Association v. New York, the court decided that because indigent defense lawyers were receiving such little compensation, it “impaired the judiciary’s ability to function” (135). Nonetheless, as The Constitution Project notes: “Even if fees are increased, a host of other problems may continue, such as a lack of support services and supervision of lawyers, as well as excessive caseloads” (109). Because litigative strategies only highlight and target one issue amongst many, other systemic problems are forgotten while compensation is temporarily fixed.
Litigative strategies thus atomize and individualize a particular issue that is part of a set of overall problems with the indigent defense system. These are not long-term solutions and only address immediate concerns, such as compensation (The Constitution Project 109). The authors of “Gideon’s Promise Unfulfilled” agree with this point, finding that even if litigation does achieve its goals, it is a momentary and fleeting achievement. “Even if successful,” they write, “these individualized lawsuits offer little hope of bringing about systemic change” (“Gideon’s Promise Unfulfilled” 2063). Nonetheless, the authors find that institutional reform litigation is nonetheless an “important model deserving more attention” (2079). Because of this, litigative strategies have not had the systemic effect that is necessary to achieve lasting national reform. This type of issue appears to be recognized by the DOJ in their Access to Justice initiative. By nationalizing and expanding the issue to the entire nation, the initiative enables broad, large-scale and hopefully lasting reform to occur. Because of this point, The Constitution Project outlines six principles for how to make litigative tactics effective on a larger scale. First, to maximize the amount of people affected by a litigative outcome, it should include all or a significant number of indigent defendants in the proceedings, and not be individualized; second, litigation should happen pretrial and not post-conviction to avoid prejudice laws; third, in a litigative action, the counsel should be “disinterested” and independent pro-bono lawyers who have worked in civil litigation; fourth, it should contain factual, empirical and objective data regarding the negative and harmful effects of the system on defendants; fifth, the action should be presented to the appropriate court; and sixth, public support should be garnered and media attention received for important litigation activity (The Constitution Project 141).
In terms of the first point, as an example of expanding how many people benefit from litigation, class action lawsuits in Washington and Connecticut were able to expand the number of defendants involved and make it so that more than a few people would benefit from the lawsuit (The Constitution Project 141). Lawsuits that only target the compensation of some attorneys may indeed address that issue for them but not change the broader problems like with a class action suit (141-2). Something that happens for lawyers in Louisiana or New Mexico may improve the situation for lawyers in those states and certain jurisdictions but not the entire system. Second, pretrial action is important because it means that the court will not have to use the Supreme Court’s Strickland decision (a 1984 case that established the means to identify ineffective assistance of counsel) to determine whether or not the indigent defense was inadequate (142). Because actually getting a Strickland violation is “exceedingly difficult”, pretrial is the time to initiate litigation because it will not run into complications with this law (143). The authors of “Gideon’s Promise Unfulfilled” agree with this point, stating that “lawsuits are hampered by stiff procedural barriers” established with Strickland (2063).
Third, as indigent defense lawyers have such little time as it is, it is important for independent lawyers to do pro-bono work to assist in litigative proceedings to alter the system (The Constitution Project 143). Fourth, factual support is important because “it is not sufficient for plaintiffs merely to assert that the system is underfunded or otherwise broken” but must do so through a “thorough compilation of evidence to support the claims” (144). In line with this, the authors of “Gideon’s Promise Unfulfilled” declare that “judicial intervention” can only occur when the structure is perceived to be in crisis and in need of revitalization: without factual and objective analysis, there is not much of a case for change (2079). Fifth, the venue of litigation is important because, even though some cases need to go through regular trial routes, some can be mediated through a writ of mandamus or other extraordinary writ (The Constitution Project 145). Individuals involved in the litigation also need to decide whether to do it at the state or federal level and be able to justify the judicial intervention to their selected audience (145). Sixth, the case proceeds only between those in the courtroom but, nonetheless, it is essential that public favor and positive editorials, reports and articles are produced surrounding a litigative action, as were beneficial in the aforementioned class action efforts in Connecticut and Washington (146). These six points seek to improve the litigative strategy as an important means for reform.
In addition, in the 2010 “A Nation of Do-It-Yourself Lawyers” from The New York Times, John T. Broderick Jr. and Ronald M. George, the chief justices of New Hampshire and California respectively (at the time the article was produced), declare that the justice system is “overburdened” and “inaccessible” (Lundy and Fein 34). To address financial issues and the “justice gap,” Justices Broderick and George suggest permitting lawyers to “unbundle” legal services, which would let lawyers take on parts of cases and not have to accept or deny a whole case completely (34). They argue that through unbundling, those with limited resources can afford parts of an attorney’s services, instead of having to pay the attorney to provide work for the whole case. This, to the justices, means enabling those who cannot afford all of a lawyer’s services to purchase part of those services. The critique of this stance is that it will lead to individuals disassembling their cases to pay for partial service and that it devalues the expertise of lawyers because it increases the likelihood of self-representation (34). The justices disagree with this critique and find that, if attorneys can unbundle services, then those who cannot afford the attorney outright can at the very least access some of their services (Lundy and Fein 34). In a way, this logic makes sense but still does not address the systemic inadequacies that those who cannot afford an attorney face outright. Unbundling and allowing for individual services to be purchased seems like it solves some issues within indigent defense but, in reality, all it does is shift the focus away from ensuring that all can access the entirety of an attorney’s work to allowing low-income individuals to access at least partial services. Those who cannot afford a full attorney’s work should not be forced to pay for only some of their services: they should instead be able to access an attorney in entirety through some other means. Partial service and unbundling is not enough and does not affirm complete competency nor fulfill ethical commitments. This suggestion is a reasonable strategy but, to summarize, does not address the core issues and the ethical problems, as Mann discusses.
Last, Mann explains the importance of the ABA’s ethical conduct rules as relevant to systemic change. The ethical issues that she raises are left unaddressed by the justices’ suggestion. Mann finds that adherence to ethics rules would “save the criminal justice system time and taxpayers money,” “discourage the perversion of our justice system by the unscrupulous,” “provide greater certainty and comfort to the victims of crimes,” “assure more just outcomes for defendants including minimizing the likelihood of convicting the innocent,” and “lead to greater safety for the public” (747). If ethics rules were adhered to, according to Mann, there would be substantial change in the system without reform. As opposed to a suggestion such as unbundling, it would mean that the existing attorney to client relationship would be shifted so that the work of an attorney is fully monitored and that the client receives the work they deserve, as required by law. This tactic would simply be ensuring that the current rules are met, not altering the system itself. Monitoring systemic failures and violations is thus an imperative and an important part of producing a higher-caliber defense structure. This solution functions as a supplement to other, larger-scale reform efforts because this idea alone is not enough. To summarize, litigative tactics are important as a means to addressing reform for indigent defense. Nonetheless, significant drawbacks include individualization and atomization of issues and outcomes of effort. These types of issues can be avoided, however, through the suggestions of The Constitution Project, so that litigative strategies can play a positive role in reforming indigent defense.
5. A New York City Case Study: Specificities and National Trends for Indigent Defense
As a case study, New York City demonstrates overarching themes and problems in indigent defense. Alan Feuer’s “The Defense Can’t Afford to Rest” discusses the current issues facing defense counsel in New York as well as how the indigent system there began (The New York Times 2011). Executive Order 178 established New York City’s indigent defense system in 1965, following the introduction of Article 18-B in New York County, which was a response to the national Gideon decision of 1963 (Feuer 2011). Since that point, New York has not had a traditional public defender’s office but instead features a combination of legal aid organizations and 18-B attorneys (there are more than 1,000 18-B lawyers in the city) (Feuer 2011). The five county bar associations, which were supposed to be professional experts, neutral to financial concerns and could hence run the system better than the city itself, oversee, evaluate and assign cases to lawyers in the system (Feuer 2011).
According to 2009 court statistics, legal aid organizations had 290,251 cases in the city, and 568 of those went to trial; 18-B lawyers represented 42,212 defendants, 623 of which went to trial (Feuer 2011). The President of the Bronx County Bar Association, Christopher DiLorenzo, states that the “18-B guys handle the toughest cases, the robberies and murders that might last a year or two before they’re resolved” (Feuer 2011). The 18-B lawyers are only paid $75 an hour and, according to lawyer Norm Pattis: “If there is a lawyer alive in New York City surviving on $75 per hour, he’s probably selling pencils on the side and sleeping in the IRT subway” (Feuer 5). An 18-B Lawyer, Harold Baker, calls it “a constant hustle” (Feuer 2011). To make matters worse, Mayor Bloomberg’s plan to reduce the city’s budget includes a serious reduction in the 18-B system (Feuer 2011). The 18-B lawyers are already underpaid and overworked and now the system could lose even more funding and resources. Lawyers doing work on homicides, armed robberies and other important cases do not have the proper space, time or resources to perform well and defend their clients. In 2010, New York spent $73 million in all five of the boroughs on 18-B lawyers, while the budget for the district attorney in Manhattan alone was $74 million (Feuer 2011).
If the DA in Manhattan has a significantly larger budget than the 18-B lawyers for all five boroughs, it means that they have access to resources that an obviously well-prepared counsel would need to have access to, like expert analysts or something as seemingly minor as secretarial assistance to type up legal briefs, in order to adequately and reasonably prepare a solid case. When there is this type of financial and logistical imbalance, it produces an unbalanced legal situation in terms of case preparation. In law, like in politics, truth is not what determines an outcome but instead facts, logic, proof and narrative do. Because of this, access to resources is an imperative for accumulating as much information, data and detail regarding an event as possible. The capabilities to perform well are thus based upon but not limited to, the financial conditions of the provider of legal services and, in this case, the DA of Manhattan has an obvious advantage over the 18-B lawyers working in the entirety of the city. The logical conclusion is hence that the city of New York favors prosecution over defense and, subsequently, due to this inadequate funding of public legal resources, rejects allowing low-income individuals to access the most competent and effective legal counsel possible. This city is indicative of the theme of devaluing and deemphasizing the legal and cultural imperative of access to quality legal services.
Christopher Stone writes in “Innovations in Public Defense as an Investment in Better Sentencing” that the Neighborhood Defender Service (NDS) of Harlem, which opened in 1990, is a successful and exemplary community- and team-based, client-centered public defender program (Federal Sentencing Reporter October 2011, 21). First, it functioned as a community-based organization because it was located close to clients’ homes and the locations of incidents, which facilitated the investigative process, such as finding witnesses (21). A traditional public defender agency waits to be appointed at arraignment to an individual charged with a crime: NDS urged possible clients and their families to contact their agency immediately when an individual was arrested so that the investigative process could begin as swiftly as possible (21). The agency featured more investigators and community workers than lawyers and, to Stone, this meant that “more facts were quickly brought to bear at bail hearings, plea negotiations, trials and sentencing hearings” because of the larger number of individuals conducting investigations (21). NDS engaged in preventative activities in an attempt to address underlying causes of arrest and trial, including activities like education seminars in Harlem high schools, job placement and voluntary surrenders (21). In addition, because clients in neighborhoods like Harlem often come into repeated conflicts with law enforcement and might need representation frequently, the agency emphasized looking at clients as whole people themselves, instead of only seeing them as yet another case (21). This can be witnessed in practices like placing clients facing their second or third case with the same team that had represented them in their prior cases (21). Manhattan court judges and other lawyers evaluated attorney competency, while the program in its entirety was subjected to customer satisfaction surveys done by former clients (21). In order to quantifiably and rigorously measure the success of NDS, researchers used a “matched-pair” strategy to compare clients from the program with those in conventional strategies of public defense to determine if the agency actually achieved its goal of shorter incarceration sentences (21).
NDS clients did indeed receive shorter incarceration times and, despite the fact that the NDS model does cost more in operating budgets, the program ultimately reduced overall costs by decreasing jail and prison time and thus the expenditures of incarcerating yet another individual (Stone 21). Stone’s thesis is that the combination of emphasis on preventative action and diligent and scrupulous work during cases allows for NDS as an indigent defense agency to provide competent defense (22). NDS is thus an example of one functional and competent indigent defense program, here in New York. Stone concludes that through high-quality defense, mass incarceration and the overwhelming social and financial costs it produces can be mitigated and reduced (22). If individuals can access quality defense, then the probability that they will accept an unnecessary plea bargain or be convicted to more time than necessary or when innocent will be minimized. Because the national mood is so concerned about debt and lowering the deficit, a reduction of costs due to unnecessary incarceration could be affected in the pre-sentencing period merely by access to quality counsel, as exemplified in the case of NDS. This case study of the NYC indigent defense system is a microcosmic example of the patterns, issues and solutions of the larger system, as already discussed.
6. Concluding: An Internship with the Public Defender Service of DC—Implications, Patterns, Endings
I spent 10 weeks working at the Public Defender Service of DC (PDS) as an intern investigator this past fall. I was in the Criminal Law Internship Program, paired with another intern. We, as a team, worked with a permanent Staff Investigator and the three of us assisted two attorneys in the AFTC (accelerated felony trial court) division of PDS. My partner and I handled a variety of tasks for our attorneys and Staff Investigator, which included subpoenaing documents, video footage and individuals, pulling case files at the court and interviewing and taking statements from witnesses. We played an active role in our attorney’s cases and assisted them in any way that is needed. The time I have spent working at PDS and the attorneys and clients I came into contact with thoroughly persuaded me of the level of competent, quality and rigorous counsel that the agency provides. Both of my attorneys were dedicated and accountable to their clients. Even though the lawyers at PDS generally have large caseloads and many clients, their work is manageable, they are able to interview and meet with clients at the DC jail, have access to resources such as experts and investigators (like myself and my partner, along with their permanent Staff Investigator), and are altogether capable of performing their duties of providing excellent counsel. This does not mean that they win all cases, which is of course not the objective, but it does mean that, because of access to resources, time and funding, they are able to provide the level of quality service that is necessary throughout the indigent system.
These lawyers are not anomalies within the indigent defense system: there are committed, conscientious and brilliant attorneys throughout the country. These attorneys, however, like their counterparts New Orleans or New York City, do not have the same materials to perform well in the way that PDS attorneys can. To the say the least, the large amount of investigative work that interns at PDS have, along with the Staff Investigators, demonstrates how necessary this type of assistance, which includes the gathering of facts, information and details, is for a public defender or indigent defense service. Investigation is critical for an indigent service because it enables attorneys to have enough information to prepare a precise and complete argument for an individual’s case. Without investigation, PDS would be missing a significant aspect of why it is so successful in many ways, as compared to other agencies. My time at PDS also further convinced me of how necessary quality indigent defense is. Without it, and without quality and competent legal counsel, there cannot be justice. If people are to trust the criminal justice system and the possibilities for justice within it, then those throughout the country who cannot afford lawyers need this type of quality representation. No one is proven guilty until court proceedings are over. Only through investigation and equal access to quality counsel, whether private or court-appointed, is necessary for the objectivity and thoroughness of these systems to be genuine. Lawyers must be equipped with everything they need to demonstrate whether or not a client is innocent or guilty, and without quality counsel this is not possible.
This short description of my experience, in all that PDS has access to, functions to show all that other agencies lack. Resources, time, money, and competence are all featured and exhibited in PDS, while other programs cannot obtain them because they are neglected by their states or jurisdictions. Again, in some states, like Mississippi or Alabama, there are not defense programs at all. Without making indigent defense programs a social priority, and rigorously and objectively demonstrating how they are necessary and why the current system is inadequate, is the purpose of this paper. Neglect of these organizations cannot continue and they need be seen for their immense value, legally and socially. To reiterate, I have made the case that the indigent defense system is underfunded, that lawyers have too large of caseloads, not enough access to resources like experts and investigators, and are underpaid, and, because of these types of chronic issues, low-income individuals cannot receive the services that are necessary for them to have a genuinely fair case. I have discussed the fact that reform can function in two ways, through legislation and litigation. The objectives of the Access to Justice Initiative, as a DOJ project, are practically perfect, while the large-scale and thorough implementation of these goals is where the program is lacking. Thus, despite this DOJ program, needs are still unmet.
Nonetheless, asking federal and state governments and local jurisdictions for increased funding for indigent defense is a difficult proposition at the moment. The political mood of the country is not in favor of increased spending with the international debt and deficit increasing. It is inaccurate to suggest that cuts to and disregard for indigent defense is a solitary event: federal and state social programs such as this have been sustaining losses and social and cultural neglect for years. Thinking that this political trend will disappear with the Obama Presidency, or the next President, is optimistic and naive. Indigent defense thus stand amongst other social programs that are also in dire need of increased funding. Despite this fact, everyone deserves a fair trial but without money, this cannot happen. Only with funding can these indigent defense agencies perform well and provide the justice that is supposed to be inherent and permanent in the American legal system.
Without a solid ground of justice for low-income individuals in court proceedings, all other parts of the criminal justice and carceral system are called into question. Thus, justice will remain elusive, an impoverished cultural and ethical concept, and its pursuit a failure, unless there is significant reorganization of resources, time and funding to defense in the justice system. This is unlikely, however. Programs and bills have come, such as the Access to Justice Initiative, which are demonstrative of a possible cultural shift to prioritize indigent defense, that many scholars, authors and theorists have noticed and called for, but these events have not meant serious change. This is not an easy task and is, in the end, the pursuit of something larger. In Federalist #51, Madison states: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit”. In its current state of affairs, the system works against precisely those who are most in danger of being oppressed by the state, in Madisonian terms. “American values” need to be closely examined such that, looking into the future, indigent defense can be improved and the original objectives of justice and democracy can possibly and perhaps be upheld; this is not about making promises that, in the event that indigent defense is improved, the legal system will finally reach any sense of justice but is instead only articulating the potentiality for this to occur. This is the pursuit of justice, not necessarily the arrival at justice, definitively; failures of indigent defense thus constitute a threat to the entire image of American justice. What is at stake in indigent defense is not merely yet another arbitrary issue in need of money and funding but is indeed the validity, valor and legitimacy, as well as, of course, the justness of the entire US legal system.
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