John P. Gross is a Clinical Associate Professor of Law at the University of Wisconsin Law School and Director of the Public Defender Project. His research focuses on the structure of indigent defense systems, criminal defense, and police policies and…
Reframing the Indigent Defense Crisis
March 18, 2023
Today marks the 60th anniversary of Gideon v. Wainwright, the Supreme Court’s landmark decision on the right to counsel. In Gideon, the Court found that “reason and reflection require us to recognize 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.” Despite Gideon’s recognition that lawyers in criminal courts “are necessities, not luxuries,” our failure to provide adequate representation to defendants in our criminal courts has been well documented. Legal Scholars have repeatedly described it as a national crisis. Just over the last decade, the Sixth Amendment Center, a nonprofit organization that evaluates indigent defense systems, has published reports documenting how the constitutional right to counsel in our criminal courts is routinely violated in Delaware, Illinois, Indiana, Maine, Mississippi, Nevada, Oregon, Utah, and Wisconsin. During the same period, the American Bar Association has developed evidence-based, state-specific workload standards for public defenders in Colorado, Indiana, Missouri, Louisiana, Rhode Island, and, in January of this year, New Mexico and Oregon which, if followed, would require most offices to double in size.
Our collective indifference toward the right to counsel in our criminal courts undoubtedly has a lot to do with the perception that poor people are to blame for their poverty and that people accused of crimes are probably guilty. Add to that the overrepresentation of people of color in our criminal courts—Black men are about 13% of the male population but about 35% of those incarcerated—and the systemic racism that pervades our culture, and we can see how elected representatives might be able to ignore the ongoing crisis in our criminal courts.
Still, it is hard to see how a lack of sympathy for the accused, skepticism toward the presumption of innocence, and underlying racism have been able to hold back the well-documented and longstanding need for reform. Especially when we consider that a national survey of the American public showed overwhelming support for public defense coupled with an awareness of the need for reform.
I believe there are three additional, overlooked reasons why the decades-long crisis in indigent defense persists. All these reasons are related to how the indigent defense crisis is framed. The first is we fail to accurately perceive how much of our judicial system is devoted to adjudicating criminal cases and how in many of those cases the accused is too poor to hire counsel. We can acknowledge that our criminal justice system is failing to adequately protect the rights of poor defendants, while at the same time seeing that failure as relatively minor, if we think that the defense of the indigent in criminal cases is just a small part of our judicial system.
But criminal cases make up a very large percentage of the cases filed in state courts. According to the Center for State Court’s Courts Statistic Project, criminal cases made up 24% of the cases filed in state courts in 2020, civil cases made up 21%, domestic relations cases 6%, juvenile cases 1%, and the rest were traffic cases. If we set aside traffic cases and we combine criminal cases with juvenile cases, which are considered quasi-criminal in nature and where the accused also has the right to counsel, then cases where the accused has the right to counsel make up almost half of the annual filings in state courts. And in those proceedings, according to a Department of Justice Report, over 80% of defendants are unable to afford counsel.
So, the most common type of case filed in state courts is criminal and in most of those cases, the accused is too poor to hire counsel. Thus, indigent defense isn’t just a part of our criminal justice system, it is our criminal justice system. And that criminal justice system isn’t just a small part of our judicial system. If we combine traffic and criminal cases, almost 75% of the filings in state courts are initiated by law enforcement. And while the right to counsel does not typically extend to traffic offenses, studies show that the poor are disproportionally impacted by laws and procedures related to driver’s license suspensions. Viewed in this light, the failure to provide adequate representation to the poor in our state courts is not a denial of constitutional rights to some defendants in certain types of cases, but the denial of constitutional rights to most litigants in most cases.
The second reason the indigent defense crisis persists is that while there is widespread agreement that the lawyers who provide representation to the poor in criminal cases have excessive caseloads, there has not been, until very recently, an evidence-based approach to establishing reasonable caseload standards. We can acknowledge that public defenders are overworked, but without a way of quantifying just how overworked they are, we can think that the level of representation they provide is still adequate in most cases.
In the last several years, the American Bar Association has sponsored several public defender workload studies that have relied on an iterative process to come up with reliable workload estimates. These studies have been done in Missouri, Colorado, Indiana, Louisiana, Rhode Island, and most recently, in Oregon and New Mexico. The results are staggering. The Oregon Project Report found that the 592 attorneys with whom the state contracts to provide public defense would have to work over 26 hours every day of the year to provide adequate assistance of counsel based on the number of cases they are currently handling. Oregon would need to hire an additional 1,296 full-time equivalent attorneys, roughly double the number they currently employ, to have an indigent defense system that ensures adequate representation. The New Mexico Project Report and the Rhode Island Project Report came to the same conclusion that those states would have to double the number of attorneys they employ in order to provide adequate representation.
These staffing deficiencies should erode our confidence in the entirety of the indigent defense system. It is not just a few defendants that receive ineffective representation; it is most defendants. Saying that an indigent defense system is functioning with only one-third of the attorneys needed is an admission that the system isn’t functioning at all.
While the magnitude of these numbers might at first glance seem inflated, we need to keep in mind that the United States leads the world in per capita incarceration rates. To achieve that level of incarceration while ostensibly providing defendants with counsel who can assert procedural and substantive rights designed to make convictions difficult to obtain, it stands to reason that the effectiveness of counsel must be severely compromised.
The third reason the indigent defense crisis persists is that we fail to consider what percentage of the legal profession is devoted to the defense of the indigent and how that percentage relates to the relative volume of cases where representation is constitutionally required. We can acknowledge and even support a constitutional right to representation in criminal cases while also giving no thought to the number of lawyers we would need to make that right a reality.
The Oregon Project Report found there are 592 attorneys currently working in Oregon in indigent defense. The ABA Profile of the Legal Profession lists Oregon as having 12,158 resident attorneys, which means that only 4.9% of the attorneys in Oregon work full time in indigent defense, despite the prevalence of criminal cases and indigent defendants. The situation is similar in New Mexico where there are 295 attorneys currently working as full-time public defenders and New Mexico has 5,612 resident attorneys which means 5.3% of the attorneys in New Mexico work full time in indigent defense.
It is hard to imagine how the recommendations in these reports to double the number of attorneys working in indigent defense would be implemented. The rates of compensation for assigned counsel are unlikely to motivate the private bar to increase their participation in indigent defense. There are always idealistic law students who want to become public defenders, but law schools aren’t producing enough of them. The University of New Mexico School of Law, the only law school in New Mexico, had 105 law graduates in 2021 while the ABA report recommends adding 136 attorneys to the state public defender office. Oregon has three law schools, Lewis and Clark, Willamette, and the University of Oregon, which produced a combined 405 law graduates in 2021, while the ABA report recommends employing an additional 1,296 attorneys to handle criminal cases.
Once again, while these numbers might seem unrealistic at first glance, we need to appreciate that the indigent defense crisis has persisted for decades. And while funding for indigent defense has been slow to increase, funding for our prison industrial complex has grown rapidly. For almost two decades, public defender salaries have remained stagnant. The National Association of Law Placement found that, in 2004, entry-level public defenders were paid an average annual salary of $39,000. By 2022, that average annual salary had increased to $59,700, but once you consider the increase in the consumer price index, public defender salaries have actually decreased over time. In addition to full-time salaried public defenders, most states also rely on members of the private bar who agree to represent indigent criminal defendants, often referred to as “assigned counsel.” The rates paid to assigned counsel are often so low that they don’t cover overhead costs and, just like the salaries of public defenders, they have remained stagnant for decades. For example, in the State of New York, the hourly rate paid to assigned counsel has not increased since 2004, which has caused a shortage of lawyers willing to accept appointments.
If funding had increased for indigent defense, there would be thousands more public defenders in our courthouses. The job of public defender would be commonplace in the legal profession. Law schools would have a suite of courses designed to adequately prepare students to practice criminal defense. The level of investment in our indigent defense systems recommended by the ABA reports reflects the structural damage done to our justice system by years of legislative neglect.
Treating our indigent defense crisis as an intractable problem confined to a subset of cases in our criminal courts does not reflect the prevalence of criminal cases where the accused is too poor to hire counsel. It ignores recent evidence that current workloads create an environment where ineffective assistance of counsel is not limited to a few cases, but rather is endemic and calls into question the effectiveness of not just individual attorneys, but the effectiveness of entire indigent defense delivery systems. It also fails to appreciate how the responsibility for safeguarding constitutional rights in our criminal courts has been relegated to a small subset of defense attorneys.
Only once we reframe the indigent crisis in relation to the number of criminal cases filed in state courts, the number of public defenders needed to provide effective representation in those cases, and the number of attorneys that are practicing law, can we appreciate the magnitude of the crisis. It is an uncontained crisis that calls into question the legitimacy of our justice system, our commitment to our constitution, and the role of lawyers in our society.