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October 01, 2023 Public Defense

Public Defense Advocacy Has a Voice in Congress, but Is Anyone Listening?

Mark Pickett

The COVID-19 pandemic put a spotlight on a crisis that public defenders and their advocates have been warning about for decades: High caseloads, understaffing, and low pay have stretched our nation’s patchwork indigent defense system to a breaking point. In many public defender offices, a single attorney may have so many cases that they simply do not have the time to ensure competent representation, irrespective of their skill, training, and passion for the work.

On June 1, 2023, a bipartisan group of representatives in Congress introduced a bill that would address this problem. Democrats Suzanne Bonamici of Oregon and Jasmine Crockett of Texas were joined by Republicans Kelly Armstrong of North Dakota and Resident Commissioner of Puerto Rico Jenniffer González-Colón in introducing the Ensuring Quality Access to Legal (EQUAL) Defense Act. Representative Bonamici has called the public defense crisis “a threat to our criminal justice system and the rights of defendants” and stated that the EQUAL Defense Act will create “more public defenders, improve public safety, and make our justice system more equitable.” Representative Armstrong, herself a former public defender, noted her firsthand experience observing attorneys who are “overworked and underpaid, which increases burnout, reduces effectiveness, and ultimately hurts the justice system and public safety.” Press Release, U.S. Rep. Suzanne Bonamici, Bonamici, Armstrong, Crockett, González-Colón Introduce Bipartisan Bill to Address Public Defense Crisis (June 1, 2023).

The EQUAL Defense Act has several key components. It would provide $250 million in federal grants to state public defense offices to collect and disseminate anonymized data on attorney workloads and case time usage, develop workload limits based on these data that provide attorneys with enough time to effectively assist their clients, and achieve pay parity with local prosecutors. Private attorneys appointed to represent indigent clients in state court would be compensated at the same hourly rate that the local federal district court pays appointed counsel under the Criminal Justice Act, a rate that is typically much higher than what states currently pay. The bill includes similar provisions for the compensation of paralegals and investigators. States receiving federal funding for public defense would also be required to provide demographic data to the attorney general. Finally, the bill would provide additional funding for public defender training, as well as reauthorize the John R. Justice student loan repayment program. The EQUAL Defense Act, H.R. 3758, 118th Cong. (2023).

A similar bill, the Providing a Quality Defense Act, was introduced in the Senate by Democrats Cory Booker and Dick Durbin. Like the EQUAL Defense Act, this bill ties grant funds to data collection, studies on caseload limits, hiring additional defenders, and increasing defender salaries. Press Release, Gideon’s Promise, Booker, Durbin Introduce Bills to Improve Access to Counsel Guaranteed by Constitution and Increase Representation of Public Defenders in U.S. Criminal Justice System (Mar. 16, 2023).

These bills have received support from public defense advocates, including ABA President Deborah Enix-Ross, who said the EQUAL Defense Act would help “protect[] the rights of the public and provid[e] relief to the men and women who provide public defense services every day.” Notably, the bill would help to bring state public defense organizations in line with the ABA’s Ten Principles of a Public Defense Delivery System, which call for workload limits to ensure quality representation, adequate training and continuing education programs, and compensation parity with prosecutors. National public defense advocacy groups such as the National Legal Aid and Defender Association, Gideon’s Promise, and the Lawyers’ Committee for Civil Rights Under Law have also supported these public defense bills.

Outside the world of public defense advocacy, however, these bills have received little public attention. The media have been virtually silent. The EQUAL Defense Act was covered by a handful of outlets in the sponsoring legislators’ home states, but major news outlets have largely been silent. See, e.g., Daisy Caballero, Bipartisan Bill Proposed by Armstrong Would Fund More Public Defenders, Ripon Advantage (June 7, 2023). The silence is surprising, given that the public defender crisis itself has received significant attention from major mainstream news outlets in recent years. In 2019, for instance, the New York Times ran a feature on the public defense crisis, Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times (Jan. 31, 2019), and has covered the high turnover and low pay in New York City–area defender offices. Jonah E. Bromwich, Hundreds Have Left N.Y. Public Defender Offices Over Low Pay, N.Y. Times (June 9, 2022). Yet the recent bills in Congress that would address these very issues have not been covered by the Times at all. These bills have also gone unmentioned by CNN, MSNBC, and Fox News. Instead, popular media remain obsessed with manufactured crises, such as stoking fear about transgender people, critical race theory, and criminal justice reform.

The media’s one-sided attention to public defense’s problems, and not possible solutions, perpetuates the false belief that the crisis is unsolvable. While recent media portrayals of public defenders have largely been positive—a welcome change from the rotating cast of slimy defense lawyers who populate Law and Order reruns—there is a risk that a more subtly insidious stereotype will replace the unscrupulous or ineffectual defense attorney in the public mind: the noble martyr. Many indigent defense attorneys have encountered this perception before. Public defenders are portrayed as honorable warriors throwing themselves into an impossible and unwinnable fight against an irreparable system. These attorneys sacrifice money, free time, and their own sanity for a greater calling. And while they might win some cases, they know they are ultimately facing impossible odds against an unchanging system.

This popular conception might stoke public defender egos, but it does little to improve their quality of life or the effectiveness of their representation. Any lawyer who chooses to work as a public defender or otherwise provide legal services to those who cannot afford to pay is, of course, pursuing a noble calling. But public defense work is also a job, and like any profession plagued by low pay, overwork, and high turnover, its problems are solvable. Many young attorneys enter the profession with a passion for helping those in need, but without significant student loan repayment assistance or some additional source of wealth, public defense work would mean not just an adjustment to their standard of living, but debt that is simply unmanageable. Those who can afford to live on a public defender salary too often become jaded by high caseloads that make meaningful lawyering impossible in most of their cases.

While the details of the public defense crisis, such as the exact number of new attorneys needed in each jurisdiction and what sort of training programs are most effective, warrant further study, the broad problem is widely understood: Public defense offices need more money directed at hiring more attorneys, investigators, and support staff; increasing salaries; and improving access to training. The House and Senate bills introduced this year would address these problems precisely. Rather than dismissing these measures as pipe dreams, the media should give them the attention they deserve.

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Mark Pickett

American Bar Associaiton

Mark Pickett is the ABA’s Chief Counsel on Indigent Defense. He previously represented indigent clients facing the death penalty in state post-conviction and federal habeas corpus proceedings in North Carolina.