Underfunded Public Defenders are Only 1/3 of The Equation

Graph demonstrating increases in United States...

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As state budget discussions heat up around the nation, each department will be fighting to keep their slice of the pie while a few will be bold enough to tout their need for expansion.  In a time of economic hardship when national politicians rallied to preserve the Wall Street predators who failed, there is only discussion around cutting back social service programs, like housing, food stamps, and public health insurance.  But what about the prison industrial complex?  Where does that fit in?

In a typical prosecution, the state represents both the prosecution and the defense, as criminal prosecutions are overwhelmingly of indigent people.  In 2007, the number of cases was nearly 5.6 million.  There is a recurring discussion about the effectiveness of overburdened public defenders, including a special report by the Bureau of Justice that details just how heavily understaffed these programs are.  Some critic of civil rights would say that the indigent doesn’t deserve taxpayer funds paying for their Sixth Amendment right to counsel.  But ironically, the argument is actually a smoke and mirror deception.

The states cannot pay to prosecute all the crimes they have chosen to create.  With the Reagan-Clinton era creation of the Drug War and federal funding of COPS, increasing the police patrols in low-income areas, the court system has been bogged down with more customers than they can handle.  Rhode Island, for example, had 56 judges in 1990.  Now they have 86, and still cannot handle the workload.  The Public Defender’s Office changed as such, between 1990 and 2010 (and the Bureau of Justice Report recommendation):

Felony Attorneys: 11 to 21 (33);  Misdemeanor Attorneys: 12 to 10 (28); Juvenile Attorneys: 6 to 7 (13); Appellate Attorneys: 4 to 4 (10); Parental Rights Attorneys: 0 to 4.  The BJS Report recommendations are actually underestimated, because they are based on “dispositions” an attorney can handle per year, not on the caseload.

The caseload increases faster than the dispositions because the Prosecutors are not adequately funded and the courts are not open long enough.  Anyone who has been to court knows that the only chance of seeing a judge typically happens between 10-12 and 2-3.  Presumably, the judge is hard at work in chambers during the rest of the time (besides lunch).  More importantly, in Rhode Island, for example, every Public Defender attorney calls three cases “Ready for Trial” each week.  And it is the Attorney General’s Office who are not ready.

The AG has a budget over three times the Public Defender, and get “free” investigative work done by the police departments.  The Judiciary budget has been climbing with new types of specific courts, and new judges or magistrates to helm them.  Overall, the Criminal Justice portion of the RI state budget (and elsewhere) approaches 10% of expenditures.  Surpassing Higher Education.

In 1999 the ACLU sued Connecticut for an inadequate Public Defenders program, and a settlement served to increase the staff, training and compensation.  Georgia prisoners filed suit in 2009 over the backlog of appeals.  Last year, a judge certified the case as a class action with the Southern Center for Human Rights as lead attorneys.  Yet the unspoken remains: the Attorney General’s side will still file for extensions in every case, as they too are overburdened.  This can be seen by thousands of Jailhouse Lawyers across the country who bypass the indigent representation and file appeals themselves.

In 1996, Illinois prisoners filed suit against six state supreme court judges.  Between judicial vacancies and a massive backlog in DNA testing around the country, death penalty states such as Ohio, Texas, and California are further mired in the gravity of these life/death appeals.  The Illinois bill to abolish the death penalty, which is more about innocence and human decency than it is about budgets, sits on Governor Quinn’s desk.  Meanwhile, a “Pro-Life” Governor in New Mexico has come out as “Pro Death” in wanting to reverse their recent ban on the death penalty.

When Brooklyn Federal Judge Jack Weinstein ordered a new trial for a man six years in the waiting for his appeal, he remarked in a memo: “The court should consider the psychic costs that result from delays in disposition for a class of generally poor, uneducated and unrepresented prisoners.”  This exemplifies one reason the innocent are cleared after decade(s) in the courts, and why it is exceedingly harder to “get over it” and move on.

Last year, New York County unveiled the Conviction Integrity Center, a long-overdue project which can save both money (freeing the innocent) and psychic costs.  It should be replicated in every county.  As they explain:

The Conviction Integrity Committee is comprised of ten senior members of the District Attorney’s staff, who review practices and policies related to training, case assessment, investigation, and disclosure obligations, with a focus on potential errors such as eyewitness misidentifications and false confessions. The Conviction Integrity Chief coordinates the activities of the Committee and leads all re-investigation of any cases that present a meaningful claim of actual innocence. The Conviction Integrity Policy Advisory Panel is comprised of leading criminal justice experts, including legal scholars and former prosecutors, who advise the Office on national best practices and evolving issues in the area of wrongful convictions.

In 1991, Robert Richards, an Oklahoma prisoner who received 50 years for delivery of a controlled substance, was told he needs to wait three years for an attorney to file his appeal, he sued the Legislature and the Public Defender, pro se.  The appeals court ruled he had to be considered in light of a landmark decision in Oklahoma, Harris v. Champion, regarding the funding of appeals.  Anthony Harris, also pro se, did not believe that the 3 year wait was constitutional.  The Tenth Circuit agreed.  Considering an appeal in Rhode Island can often take three to five years to be heard, one needs to question the word “Speedy” as in “Right to a Speedy Trial.”

So what is the answer?  Prisoners who sue have a right to be released if governments cannot meet their burden.  The possibility of mass releases is unpalatable to many, and the possibility of doubling the budgets of courts, prosecutors, and public defenders is unreasonable.  Therefore the answer is obvious:  Fewer crimes.  Between drug possession, family disputes, and traffic offenses, the court systems have become a never-satisfied beast always eating, yet unable to digest.  Thirty years of feasting, and this beast is ready to burst.

About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on www.Unprison.org.
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