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October 01, 2013

Human Rights Heroes: Public Defenders

by Robert E. Stein

Public defenders both individually and as a group are the Human Rights Heroes we recognize in this fiftieth anniversary of Gideon issue of Human Rights magazine.

Public defenders did not originate with or after Gideon v. Wainright. In fact, Clara Shortridge Foltz, in 1893, during a “congress” of the Board of Lady Managers at the Chicago World’s Fair, introduced the idea of the public defender, with a speech entitled “Rights of Persons Accused of Crime—Abuses Now Existing.” However, it was the right to counsel in criminal proceedings set out in Gideon that provided the catalyst for the creation of public defender offices in many states.

According to data collected by the Bureau of Justice Statistics (BJS) in 2007, in forty-nine states and the District of Columbia, there are twenty-seven county and hybrid states with 763 individual offices and twenty-two states with 483 local offices that have a central state-based public defender office. In addition to defender offices, indigent defense services may also be provided by court-assigned private counsel or by a contract system in which private attorneys contractually agree to take on a specified number of indigent defendants or indigent defense cases. Data from prior BJS surveys on indigent defense representation indicate that most criminal defendants rely on some form of publicly provided defense counsel, primarily public defenders. Federal public defender offices and offices that provided primarily contract or assigned counsel services with private attorneys were excluded from the data collection, but newer data are being compiled.

With the increase in cases being brought, there has been considerable concern raised in a number of states that public defenders cannot provide effective representation of their clients because they have too many cases.

As Steven Hanlon has commented in his article in this issue, “Despite the heroic, indeed Sisyphean efforts of individual public defenders, the harsh truth is that every day in thousands of courtrooms across this nation, public defenders ‘meet ’em and plead ’em,’ spending precious few minutes with their clients, as their offices triage cases by shifting resources to higher-risk cases (e.g., homicides and sex offenses).” Recognizing the increasingly difficult position that caseloads were placing on public defenders, the ABA in 2009 adopted the Eight Guidelines of Indigent Defense Related to Excessive Caseloads that provided some recourse for defenders who believed their caseload made effective representation impossible. After appropriate notice, they should seek judicial relief from their appointment to additional cases.

State court decisions are beginning to recognize this and the Supreme Court of Missouri in Missouri Public Defender Commission v. Waters provided that if a lawyer cannot provide effective representation, for example, due to excessive caseloads, the court cannot appoint that lawyer as counsel. Defenders were required to develop systems that provide evidence of their claims of excessive caseloads. We support this development as it will give more credibility to the argument that overloads are making effective representation difficult if not impossible.

A further concern is the effective utilization of resources available to defenders and the imperative that the defense function obtain a fair share of resources allocated to the three legs of the criminal law “stool” (enforcement, prosecution, and defense). For that purpose, the ABA in February 2013 called for the creation of a Center for Indigent Defense Services and the appropriation of “sufficient funds for the Center to successfully carry out its mission.”

Because of the important role that they play in providing the bulk of representation of indigent defendants in criminal cases in implementing the holding and spirit of Gideon v. Wainright, Human Rights magazine recognizes and thanks public defenders throughout the United States for their service and further commends their efforts to obtain the resources necessary to enable them to provide the effective representation called for by the U.S. Constitution and Supreme Court cases that have interpreted it.

Robert E. Stein

Robert E. Stein is a refocused lawyer in Washington, D.C. He has been a member of and chaired the ABA Section of Individual Rights and Responsibilities and more recently the Standing Committee on Legal Aid and Indigent Defendants.