Academic journal article Michigan Law Review

"It's Not You, It's Your Caseload": Using Cronic to Solve Indigent Defense Underfunding

Academic journal article Michigan Law Review

"It's Not You, It's Your Caseload": Using Cronic to Solve Indigent Defense Underfunding

Article excerpt

Introduction

Frederick Bell was arrested in October 2016 in Louisiana after police officers alleged "they found drugs in his car during a traffic stop."1 He says he met with his attorney, a public defender, for five minutes after his arrest.2 In November, Mr. Bell saw his attorney again, in court, where he was told about his plea offer.3 His trial was set for April 2017.4 On March 10th, less than a month before trial was set to begin, he still had not discussed his case with his attorney.5

Mr. Bell's circumstances are not unusual. The lack of adequate funding for indigent defense is well known and well documented. Extreme caseloads stemming from inadequate funding prompted the director of the Missouri State Public Defender System to appoint6 the governor to a capital case in 2016.7 In Mississippi, the NAACP Legal Defense and Educational Fund conducted an in-depth survey of indigent defense in 2003.8 The report revealed that indigent defendants in state court were waiting for months in jail before being ushered through mass guilty pleas (groups of defendants that plead guilty together with little or no legal consultation).9 In Louisiana, indigent defendants wait weeks, months, and possibly years for an available public defender to take their case.10 The lucky ones, like Frederick Bell, wait to be contacted by their lawyers while out on bond; the unlucky ones wait in jail.11 On February 6, 2017, the Southern Poverty Law Center filed a class action suit on behalf of plaintiffs denied a meaningful defense in Louisiana.12 The pleading alleges that chronic underfunding has led to a complete failure of the indigent defense system in the state, denying defendants equal protection, due process, and the basic right to effective assistance of counsel.13

Systemic underfunding leads to high caseloads managed by too few attorneys. In 2000, more than 80 percent of people charged with felonies in state court in the United States were indigent.14 In 2007, three out of every four county-funded15 public defender offices in the country faced caseloads higher than the maximum ABA recommendations (150 felonies or 400 misdemeanors per full-time attorney per year).16 Fifteen out of twenty-two state17 defender systems also operated with caseloads that exceeded national standards.18 That same year, individual lawyers in Florida faced caseloads of over 500 felonies and 2,225 misdemeanors.19 In Tennessee, six attorneys were responsible for over 10,000 misdemeanor cases.20 On February 17, 2017, the ABA Standing Committee on Legal Aid and Indigent Defendants released a report21 that showed that, in order to "reasonably handle" the 150,000 cases assigned to public defenders each year, Louisiana would need 1,769 full time attorneys.22 Currently, it has 363.23

In spite of alarming caseloads in many localities, significantly less money is often allocated to indigent defense than to the corresponding prosecutors' offices.24 In New York City, the 2016 budget for the city's five district attorneys was $331.4 million.25 The 2016 budget for public defense was $250.6 million, over $80 million less.26 And in Washtenaw County, Michigan, the 2016 adopted budget allocated $2.9 million to the public defender and $5.9 million to the prosecuting attorney, a discrepancy of $3 million.27 The discrepancies in funding between prosecution and defense are legal: states get to allocate funding however they choose. The numbers are particularly egregious, however, in light of the fact that public defense budgets pay for lawyers, investigators, and, in some offices, social workers and civil attorneys. 28 Prosecutors' offices, in contrast, pay for lawyers and victim's advocates, but investigation is conducted by local, state, and sometimes federal law enforcement-all entities with their own working budgets. There is no federal or state law that mandates "adequate" levels of indigent defense funding. The lack of funding mandates means no real, enforceable limit on caseloads for defense attorneys, regardless of the national ABA maximums. …

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