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April 01, 2009

A Broken Indigent Defense System: Observations and Recommendations of a New National Report

by Norman Lefstein

Editor’s Note: This article has been adapted from the executive summary of the National Right to Counsel Committee’s report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, available at It is reprinted with permission of the Constitution Project and the National Legal Aid & Defender Association. Norman Lefstein is a professor of law and dean emeritus at Indiana University School of LawСIndianapolis. He served as a co-reporter for the National Right to Counsel Committee’s report.


More than forty-five years ago, the U.S. Supreme Court rendered one of its best known and most important decisions, Gideon v. Wainwright, 372 U.S. 335 (1963). In memorable language, the Court explained that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344. Observing that “lawyers in criminal courts are necessities, not luxuries,” id., the Court concluded that governments have an obligation under the U.S. Constitution to provide lawyers for people charged with a felony who cannot afford to hire their own.

Soon afterward, the Court extended Gideon, applying the right to a lawyer to juvenile delinquency cases and to misdemeanor cases where imprisonment results. The right to counsel is now accepted as a fundamental precept of American justice. It helps to define who we are as a free people and distinguishes this country from totalitarian regimes, where lawyers are not always independent of the state and individuals can be imprisoned by an all powerful and repressive state.

Yet today, in criminal and juvenile proceedings in state courts, sometimes counsel are not provided at all or are supplied in ways that make a mockery of the great promise of Gideon and the Court’s soaring rhetoric. Throughout the United States, indigent defense systems are struggling. Due to funding shortfalls, excessive caseloads, and a host of other problems, many are truly failing. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in their justice systems. In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever. Although troubles in indigent defense have long existed, the call for reform has never been more urgent.

A New National Report

For the first time since Gideon, an independent, diverse group whose members include the relevant constituencies of the justice system has examined the nation’s ways of providing defense services for the poor and is sounding the alarm about the grave problems that exist today. The National Right to Counsel Committee, sponsored by the Constitution Project and the National Legal Aid & Defender Association, approved the report entitled Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel that is referenced throughout this article.  The report addresses the full dimension of the difficulties in indigent defense from a national perspective. The committee’s members include persons with judicial, law enforcement, prosecution, and defense experience as well as policymakers, victim advocates, scholars, and a person who was convicted of a crime that he did not commit, was sent to prison, and was later exonerated via DNA evidence.

The committee’s twofold mission was to examine whether criminal defendants and juveniles charged with delinquency who are unable to retain their own lawyers receive adequate legal representation, consistent with decisions of the Supreme Court and rules of the legal profession, and to develop consensus recommendations for achieving lasting reforms. It understood that numerous studies have cataloged the problems with indigent defense, but these reports have not had significant impact in bringing about improvements. The committee was determined that its report focus not simply on all that ails indigent defense but that it also present detailed information on successful strategies for change.

Making a case for needed reform is not especially difficult because the subject has been frequently examined and the difficulties in delivering defense services are regularly reported in the news. The committee had access to hundreds of national, state, and local reports of indigent defense, and several thousand newspaper articles spanning over ten years. The committee’s report cites many of the most recent studies conducted in state and local jurisdictions, a national report of the American Bar Association published in 2004, and numerous newspaper articles. In addition, independent researchers, retained on behalf of the committee, conducted visits to gather data and glean insights.

The committee purposely did not focus on problems involved in defense representation in death penalty cases because the Constitution Project, among others, had issued several reports on this subject. Further, the 2003 Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases adequately address this issue. Also, by excluding such prosecutions, the committee believed that it could better concentrate on defense representation. Similarly, while juvenile delinquency proceedings are discussed in Justice Denied, the committee decided that its primary focus would be on defense services in criminal cases.

The committee wants to emphasize that the report’s focus is on the current difficulties in providing indigent defense representation. Obviously, we have made considerable progress since Gideon was decided. The moneys spent by state governments and local jurisdictions to defend accused persons have increased significantly since 1963. Clearly, some jurisdictions are delivering defense services by talented professionals who have the time, training, and resources to do first-rate legal work for their clients. However, even in these places the progress that has been made is at considerable risk given the fiscal problems that now afflict state and local governments. As of May 13, 2009, the Center on Budget and Policy Priorities, a nonpartisan research and policy organization, reported that “[a]t least 47 states faced or are facing shortfalls in their budgets for this and/or next year.” (Iris J. Lav and Elizabeth McNichol, Ctr. On Budget & Policy Priorities, State Budget Troubles Worsen (2009), Moreover, the evidence is overwhelming that jurisdictions that have done reasonably well in the indigent defense area are in a distinct minority. In most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources. And these are by no means the only problems.

The Right to Counsel: Basic Principles

The new report opens with a primer on the right to counsel in America, which derives from the Sixth Amendment to the U.S. Constitution and applies to the states. The kinds of cases to which the right applies are explained, which include the vast majority of criminal cases at trial and on appeal, as well as juvenile delinquency proceedings at trial and on appeal. Moreover, the Supreme Court has continued to extend and to elaborate upon the right to counsel. In 2002, it declared that a defendant who receives a suspended sentence in a misdemeanor case could not later be imprisoned for a probation violation unless counsel was afforded when he or she was initially prosecuted. And in 2008 the Court held that the right to counsel attaches at initial court appearances during which defendants learn of the charges brought by the state.

But an accused is entitled to more than just a lawyer. The right to counsel also encompasses the right to experts and transcripts to assist in a person’s defense; as with counsel, governments must pay for them. While the Court has not held that defendants must be represented by lawyers, it has declared that lawyers must be provided unless defendants knowingly, voluntarily, and intelligently decide to forego the assistance of counsel. On the other hand, the Court has said virtually nothing about how governments are to provide lawyers and, even more importantly, who must pay for the experts, transcripts, and thousands of attorneys across the country who must be provided to assist accused persons. What we do know is that these expenses entail substantial costs, and the financial burdenСthe result of the Court’s interpretation of the federal ConstitutionСhas fallen exclusively on state and local governments, who are called upon to translate the right to counsel into meaningful indigent defense programs. Thus the Court’s decisions “are a significant high-cost, unfunded mandate imposed upon state and/or local governments.” National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel 30 (The Constitution Project 2009).

One reason that the right to counsel is expensive is because the lawyers providing representation must be trained and have offices, computers, and the assistance of investigators and paralegals. If private attorneys, they must receive adequate compensation for their services. If employed as public defenders, they must have reasonable salaries and benefits. In addition, the rules of the legal profession require that all attorneys who represent clients, including indigent clients, must be “competent” and “diligent” in doing so. Consequently, they cannot be allowed to have an unreasonable number of clients, lest they violate their duties as members of the bar and deprive their clients of the kind of representation that a private lawyer could be expected to provide. In addition, states frequently require that legal representation be made available in situations where the right to counsel is not constitutionally required, thus further straining the resources of public defense programs.

The committee report also addresses why the right to counsel matters. The most compelling answer is that, in our adversary system of justice, fairness is served if both sides are represented by lawyers who are evenly matched in areas such as available time to devote to the case, training, experience, and resources. When the defense does not measure up to the prosecution, there is a heightened risk of the adversary system of justice making egregious mistakes. We have learned all too well, by means of DNA evidence, that an unknowable number of genuinely innocent persons have been wrongfully convicted and sent to prison. Usually, police and prosecution errors have been the cause of this, or eyewitnesses made mistakes in identification, though on occasion wrongful conviction has been due to clear abuses of law enforcement powers. Such convictions also have occurred as a result of inadequate representation by defense lawyers. Whatever the reasons, for innocent persons to lose their liberty is a travesty. Equally troubling, it means that guilty persons roam free, victimizing others, while the state pays to incarcerate those who have not transgressed against society. Well-trained lawyers and adequately funded systems of defense are essential to prevent this.

Effective programs of public defense are crucial to the public’s trust in the legitimacy of its justice systems and confidence in their results. While politicians frequently do not provide adequate funding of indigent defense, fearing a lack of public support for it, evidence suggests that the public understands the issue better than the politicians may appreciate. Several years ago, a national, independent public opinion research organization polled 1,500 Americans and requested their views respecting indigent criminal defense. The results revealed overwhelming support for appointing and paying for lawyers on behalf of persons who could not afford one.

Indigent Defense Today: A Dire Need for Reform

Numerous national reports have exposed the countless problems in indigent defense and have urged reforms, but the problems persist. Although funding for indigent defense among state and local governments has increased considerably since the 1960s, inadequate financial support continues to be the single greatest obstacle to delivering “competent” and “diligent” defense representation, as required by the rules of the legal profession, and “effective assistance,” as required by the Sixth Amendment. Moreover, the country’s current fiscal crisis, which afflicts state and local governments everywhere, is having adverse consequences for the funding of indigent defense, which already receives substantially less financial support in relation to prosecution and law enforcement.

Inadequate funding is most evident when attorneys regularly attempt to provide defense services while carrying astonishingly large caseloads. Frequently, public defenders are asked to represent far too many clients. Sometimes they have well over 100 clients at a time, with many of them charged with serious offenses, and those cases move quickly through the court system. As a consequence, defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview clients properly, effectively seek pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources. Yes, the clients have lawyersСbut lawyers with crushing caseloads who, through no fault of their own, provide second-rate legal services simply because it is not humanly possible for them to do otherwise. A variety of other factors exacerbate caseload problems for indigent defense systems: “tough on crime” policies translated by legislatures into additional criminal laws, the need for defendants to be aware of the collateral consequences of conviction, the criminalization of minor offenses, the ever-increasing complexity of the law with which defense attorneys must be familiar, a lack of open file discovery practices by prosecutors, and specialty courts that impose additional time demands on defense attorneys.

Impediments to successful indigent defense programs arise in other ways. Sometimes problems stem from a lack of independence from the authorities that provide funding for the defense program. Sometimes the county officials responsible for providing funds for indigent defense subject chief public defenders to political pressures because their lawyers have challenged the prosecutionСand did exactly what public defenders are required to do in representing their clients. A lack of independence from the judiciary sometimes affects the selection, appointment, and payment of counsel. Lawyers deemed to be too aggressive may be excluded from appointments or favoritism may be shown to certain lawyers, who are appointed to a disproportionate share of cases.

Other difficulties encountered in efforts to provide effective defense services include a lack of experts, investigators, and interpreters; insufficient client contact; and inadequate access to technology and data. Usually, no enforceable standards govern the performance of defense counsel, they receive little or no training, and meaningful supervision and oversight of their performance is lacking. Another problem is that defense lawyers are not always appointed to clients’ cases in a timely manner, causing defendants to remain in custody far longer than they would otherwise and counties to incur jail costs that could have been avoided had counsel been appointed earlier.

Focusing on situations when lawyers are provided for the accused, although sometimes later than they should be, addresses only one dimension of the problem. Another major problem exists, namely, the total absence of counsel because defendants are not advisedСor not adequately advisedСof their right to counsel. When a defendant is not adequately advised of this right, his or her waiver almost certainly would not withstand scrutiny as a valid waiver of the right to legal representation. This invalidity, however, typically fails to come to light because the waiver process receives minimal scrutiny and defects rarely surface in the appellate courts. Moreover, some lower courts still do not maintain a record of proceedings, so one cannot be sure exactly how counsel was offered to the accused and if the waiver of legal representation was valid. Considerable evidence exists showing that, in many parts of the country, prosecutors play a role in negotiating plea arrangements with accused persons who are not represented by counsel and who have not validly waived their right to counsel. Not only are such practices of doubtful ethical propriety, they also undermine defendants’ right to counsel.

Many of the committee’s findings are virtually identical to a recently completed study of indigent defense services in misdemeanor cases. See Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts (Nat’l Assoc. Crim. Defense Lawyers 2009). Problems identified in that report include (1) defendants unrepresented in misdemeanor courts because they have improperly waived the right to counsel; (2) excessive caseloads of public defenders and assigned counsel that undermine effective representation and lead lawyers to violate their ethical obligations; (3) defendants pleading guilty to misdemeanor offenses without an understanding of the applicable and potentially severe collateral consequences; (4) a lack of investigators, experts, and mental health professionals; and (5) the overcriminalization and prosecution of minor infractions and offenses, which drains resources that would otherwise be available for more serious offenses.

Achieving Reform through Litigation

No better evidence exists regarding the problems in implementing the Supreme Court’s right-to-counsel decisions than the enormous number of lawsuits that have been brought over many years and the litigation that is currently pending, in which the legality of indigent defense services have been challenged in the courts. Many times these challenges have been successful and have led to improvements.

Lawsuits have been brought in a host of federal and state courts, including Alabama, California, Connecticut, Georgia, Illinois, Indiana, Louisiana, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, and West Virginia, to name just a few. As of late 2008, litigation respecting indigent defense was pending in at least eight states. In Michigan and New York, lawsuits have been brought challenging entire systems for delivering indigent defense services. In Florida, Kentucky, and Tennessee, litigation is pending in which defense lawyers have challenged the actions of trial courts in seeking to require public defense programs to handle caseloads alleged to be excessive.

Justice Denied sums up the lessons learned in seeking indigent defense reforms through litigation. It suggests that actions should be instituted pretrial on behalf of all, or a large class of, indigent defendants in order to secure a favorable remedy with broad impact. Stressing the participation of pro bono counsel from large law firms and the involvement of lawyers from public interest legal organizations is important because systemic reform litigation is time consuming and requires an expertise not typically possessed by public defense practitioners. One must also recognize the importance of strong factual support on behalf of the claims asserted and the role of the media and public support in fostering a climate likely to lead to a successful outcome.

Achieving Reform via Legislation and Commissions

The report also sets forth the organizational structures for delivering indigent defense services in the fifty states and devotes particular attention to developments since 2000. It notes that eleven states have enacted legislative changes during the past eight years and describes the kinds of changes that have occurred. The impetus for legislative reforms and the obstacles to achieving change are also reviewed.

Twenty-seven states currently have organized their defense services entirely or substantially on a statewide basis. Of these, nineteen have a state commission with supervisory authority over the defense program, headed by a state public defender or state director. In the other eight states, a state public defender provides the oversight rather than a state commission. In the remaining twenty-three states, there is either a state commission with partial authority over indigent defense (eight states), a state appellate commission or agency (seven states), or no state commission of any kind (eight states).

Based on the committee’s study of defense programs, the committee report offers a number of suggestions about what is necessary to have a successful statewide oversight body. The state’s commission must be an independent agency of state government and its placement within any one branch of government must be for administrative purposes only. A diverse group of stakeholders should appoint the members of the commission so that its members are not responsible to just one or two appointing authorities to which they feel a sense of obligation. A range of other specific matters are explored in the report, including the duties that should be given to a commission, so that it will be able to improve the quality of representation in the state. Finally, the role of study commissions in achieving indigent defense reforms is considered, pointing out their prior contributions and noting that several current commissions are focused on indigent defense reforms.

Recommendations and Commentary

The closing section of Justice Denied contains the committee’s twenty-two recommendations. Each recommendation is accompanied by a commentary, with cross-references to other parts of the report that explain and support the committee’s positions. Several black letter recommendations, without the commentaries, appear in the box beginning on page 14.

One of the committee’s most important recommendations is that indigent defense should be independent, nonpartisan, organized at the state level, adequately funded by the state from general revenues, and overseen by a board or commission. Of equal significance is the recommendation that the federal government assist the states in the delivery of indigent defense services. For more than forty-five years, the states and/or counties have struggledСand continue to struggleСto implement the Gideon decision and its progeny. The right to counsel is a federal guarantee based upon the Sixth Amendment, and it is entirely fitting that the federal government assist in its implementation.

To achieve reform at the state level, it is vital that a coalition of partners be engaged as part of a comprehensive strategy. The judiciary, bar officials, community leaders, public interest organizations, national associations of lawyers, and others need to be enlisted as partners to persuade the legislature of the importance of an adequate statewide program of indigent defense. To succeed, empirical documentation of the problems, as well as favorable media coverage, will be needed to generate a positive climate of public support. All of these efforts are essential investments in America’s future because, as Judge Learned Hand said many years ago, “If we are to keep democracy, there must be a commandment: Thou shalt not ration justice.”

Norman Lefstein

Norman Lefstein is a former director of the D.C. Public Defender Service and currently serves as a consultant to the ABA Standing Committee of Legal Aid and Indigent Defendants. He is a co-author of Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, published by the ABA in 2004.