Part 1: The human toll of America's public
Oliver Laughland, The Guardian, 7 Sep 2016 (Last modified on Fri 14 Jul 2017 14.46 EDT)
‘Public defenders are the pack mules of the system. Pack mules can carry a lot. But you put one
more box on an overburdened mule, and it won’t be able to function.’ Photograph: Dave
Years of drastic budget cuts have created bottomless caseloads for public defenders – the ‘pack
mules of the system’ – and tipped the scales of justice against the poor
Part one of a three-part series reported in partnership with the Marshall Project
“What if I’d had more time?” Across the US, it is the question public defenders often find
themselves asking the most. Would a young, pregnant African American woman in Lexington,
Kentucky, who faces minor fraud charges laid down in April still be in jail if her lawyer had the
time to appeal against an impossible $40,000 bail bond?
Could the 50-year-old illiterate white man in Cole County, Missouri, charged in August with
vehicular assault and facing over a decade in prison, ever be assigned an attorney with the
resources to defend him?
How many of the 30 defendants present for a single “mass plea” hearing in Louisiana’s 16th
judicial district in June would have pleaded not guilty if they’d had more than 20 seconds of
In 1963, the landmark Gideon v Wainwright supreme court ruling enshrined the constitutional
right for indigent criminal defendants – those who cannot afford to pay for a lawyer – to access
legal counsel. But 53 years on, as the rate of incarceration across the country has more than
quadrupled and up to 90% of criminal defendant in the US qualify as indigent, this cornerstone
principle of the justice system has been eroded to breaking point.
As Ed Monahan, Kentucky’s public advocate and chief defender said: “We’re in crisis in
Kentucky and in America.
“Public defenders are the pack mules of the system,” he said. “Pack mules can carry a lot. But
you put one more box on an overburdened mule, and it won’t be able to function.”
In recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a
manifestly unequal justice system that disproportionately punishes poor people of color. In
diagnosing the causes of this problem much of the focus has centered on sentencing reform, but
in a country where 95% of criminal cases are settled by plea deal, little attention has been given
to the critical state of indigent defense. Around the US, defenders routinely report an increase in
overburdening and underfunding, caused by a variety of structural, political and economic
Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association,
state and county governments spent a total of $5.3bn on indigent defense systems a year, just
2.5% of the roughly $200bn spent on criminal justice by states and local government every year.
The depth of crisis varies in each state, indicative of the complex patchwork of defense systems
that are funded and administered differently dependent on jurisdiction.
In Missouri, for example, where the defender office is funded entirely at the state level, Governor
Jay Nixon has repeatedly blocked the passage of state legislation to cap defenders’ workloads
and increase their funding. Most recently, in July, Nixon withheld $3.5m of a relief fund
approved by the state legislature to hire additional staff. As a result, the Missouri system is
chronically overburdened, according to a 2014 study, which found the office was in need of 270
more staff to meet increasing caseloads. Instead, said the director of the state’s defender
program, Michael Barrett, the office has lost 30 staff members since 2014 due to funding cuts,
and is taking on 12% more cases – now 82,000 a year. Barrett said this meant defenders were
often juggling upwards of 150 cases at a time, with an average of $350 available for each client,
ranging from minor misdemeanor cases to non-capital murders.
In Cole County, Missouri, defenders work more than 225% above the recommended caseload
“Let’s put that in context: if you or I were to hire counsel for a simple DUI, it would cost
thousands of dollars,” Barrett said.
Last month, Barrett took a novel approach to mitigate the crisis. He attempted to compel Nixon,
a former attorney general and private-practice lawyer, to represent a 50-year-old illiterate white
man in Cole County – a right Barrett claimed he has under state law.
“Given the extraordinary circumstances that compel me to entertain any and all avenues for
relief, it strikes me that I should begin with the one attorney in the state who not only created this
problem, but is in a unique position to address it,” Barrett wrote.
The case itself was not extraordinary, Barrett said, but the defender’s office in Cole County is
one of the most overburdened in the state, where defenders work more than 225% above the
recommended caseload limits.
At a preliminary hearing weeks later, a judge handed down a single-page ruling which found that
Barrett did not have the authority to compel the governor. “I was disappointed but not surprised,”
said Barrett, adding that the case has now been assigned to one of his own overloaded attorneys.
The situation in Kentucky, another state-funded system, is a little different; funding difficulties
are tied to the legislature rather than the governor’s office. Although the defender program was
spared from sweeping budget cuts across the state, earlier this year the state senate rejected a
$6.2m budget increase handed down by a sympathetic Republican governor, Matt Bevin, which
would have created 44 new positions in the defender’s office.
Kentucky defenders took on average 448 cases in the past year, 54% above recommended
national standards. Attorneys take on 11% more cases than they did a decade ago, and in areas
such as Louisville now take close to double the national standard. The department received $49m
last year – less than 0.5% of the overall state budget.
Even in Colorado, a state-funded system where the defender’s office is subject to a number of
legislative safeguards that makes it one the most well funded in the country, agency executive
Doug Wilson said his department was operating at a 10% staffing deficit. “I’m not telling you
we’re fully funded and everything is peachy,” Wilson said. “I’m just telling you, we’re in better
shape than most agencies across the country.”
In Utah, an estimated 62% of all misdemeanor defendants had no access to counsel at all, and at
the very least 35% of public defense attorneys are overloaded with cases. Again, the root causes
are different. Indigent defense is funded entirely at the county level, and in all but two counties
indigent defense is provided by contracted attorneys – rather than defender’s offices – who are
subjected to no state oversight and are paid a fixed fee per case. As such, concluded a recent
study by the Sixth Amendment Center, Defense provider in most of Utah are essentially
incentivized to work their cases quickly instead of effectively, and are thereby systematically
subjected to a conflict of interest.
But perhaps nowhere in the US is this crisis felt more acutely than in Louisiana, where
Americans are incarcerated at a higher rate than any other state, and where the defender system
is already on the brink of meltdown.
Unlike any other state, Louisiana pays for its defense system primarily through speeding tickets
and other local revenue
Unlikely any other state, Louisiana pays for its indigent defense system primarily through
speeding tickets and other locally generated revenue, rather than guaranteeing funds through the
budgeting process. As a result, the finances of each defender’s office are subject to an
extraordinarily high level of uncertainty, especially in districts without major highways – and
during floods and other emergencies, when the police and courts are doling out fewer tickets.
Earlier this year, that unstable system was thrown into further disarray by Louisiana’s worst
budget crisis in decades, which came in the wake of a steep drop in oil prices and years of taxslashing by former governor Bobby Jindal. Around the state, defenders went into triage, putting
thousands of their clients on waitlists for a lawyer.
But national attention on the crisis has waned, in part because conditions have improved in the
city that receives no shortage of media coverage, New Orleans. After receiving a small influx of
funds, the public defender’s office there ended its hiring freeze while reducing its waitlist to
fewer than 40 defendants.
Out in Louisiana’s 63 other parishes, however, much of this summer’s improvement in the
indigent defense system is shallower than it appears. In Caddo Parish, the courts have addressed
the public defender’s funding problems by appointing all the lawyers in town – including tax,
real estate and adoption attorneys – to the cases that were being neglected, which has
superficially resolved the waitlist. In Winn Parish, a prosecutor is now working part-time as a
defender, another makeshift and constitutionally questionable way of making do in the absence
In the 16th judicial district, up to 50 poor defendants are convicted and sentenced – at once – for
major felonies carrying up to decades in prison, while the single public defender representing all
of them struggles to present any of the facts and arguments in their separate cases. And in the
20th district, exactly one lawyer is now employed to run a defender’s office that covers two
parishes and more than 900 cases.
Over the next two days, the Marshall Project, in collaboration with the Guardian, will focus on
the dire state of public defense in Louisiana and the often bizarre coping strategies some parishes
have been forced to take.
How bad is the picture around the country? Frustratingly, the scale of the problem remains
unknown as dozens of states and jurisdictions produce no reliable data at all on the condition of
their public defense systems.
The last nationwide survey of public defender offices was carried out almost 10 years ago by the
Department of Justice’s bureau of justice statistics (BJS). The findings were stark: 73% of
county-operated defender systems, utilized in 27 states, were functioning above the maximum
recommended caseload level.
In the 22 state centralized defender programs, 15 ran on caseload levels that exceeded the
recommended case limit. In a world of meagre measurement and inadequate oversight, many
argue the findings were a significant underestimate of the nationwide strain on the system.
In 2013, the BJS embarked on a follow-up survey, aiming to examine all forms of indigent
defense systems – not just the defender’s offices examined in 2013. But the process has been
arduous. Although the department has had a full response rate among state-administered offices,
only 70% of county-based programs have responded, meaning publication of this side of the
research may be delayed until spring of next year.
Suzanne Strong, the statistician leading the research, described many of the county-based
systems as a “completely unknown universe”.
Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and
her predecessor, Eric Holder, the issue remains intractable. Congressional bills offering
defender’s offices easier access to federal grant money have gone nowhere.
And in an election year during which Hillary Clinton has explicitly promised to “reform our
criminal justice system from end to end”, dealing with the crisis in funding defense of the
poorest people coming before the courts does not feature on her platform for change. Donald
Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes
no further than a vow to appoint “the best prosecutors and law enforcement officials in the
In Washington, Democratic congressman Ted Deutch introduced in 2013 the National Center for
the Right to Counsel Act, legislation that would create a private, non-profit centre to provide
training, research initiatives and grant funding to defender’s offices around the country.
Although the legislation was endorsed by a spectrum of legal groups, including the American
Bar Association, it got nowhere in the House and was subsequently reintroduced last year.
“There has been a lot of bipartisan conversation here about criminal justice reforms, but most of
that is focused on sentencing reform,” Deutch said. “We will continue to struggle with mass
incarceration if we don’t do something to stop the system from feeding people into our prisons.
“In Washington, it sometimes takes a long time to help people recognize the problem that exists
and that we have to grapple with.”
A few days spent in the courtrooms of rural Louisiana might be a start.
Part 2: Louisiana public defenders: a lawyer
with a pulse will do
‘It’s like if we told a prosecutor to do a medical malpractice suit.’ Photograph: Laurence
Mathieu-Leger for the Guardian
In several parishes, real estate and adoption attorneys – and even prosecutors – are filling the
gaps left by an unreliable public defense funding program
Part two of a three-part series reported in partnership with the Marshall Project
By Eli Hager.
Thu 8 Sep 2016 07.13 EDT Last modified on Fri 14 Jul 2017 14.46 EDT
Last fall, insurance attorney Ryan Goodwin found himself in a visiting area of the Caddo
correctional center in Shreveport, Louisiana, bracing for an awkward conversation. He had to
make an admission to his new client – a 16-year-old who was facing life in prison for stealing
someone’s wallet and cellphone at gunpoint.
“I don’t do criminal defense,” he told the teenager, Norman Williams Jr. “But I promise you, I’ll
definitely try my best.”
Goodwin typically represents insurance companies in litigation following car accidents. His job
involves finding out what injuries the victim claims to have and whether they were caused by the
crash. He has no criminal law experience.
But because the Caddo Parish public defender’s office was suffering from a historic, statewide
lack of funding, it could no longer provide counsel to hundreds of its poor clients. To fill the
void, judges were randomly assigning the neglected cases to all the lawyers in Shreveport,
including those specializing in real estate, personal injury, taxes and adoption. Anyone with a
law license, a professional address in the parish and a pulse was placed alphabetically on a list.
They could be called on at any moment to take a criminal case, unpaid.
For Goodwin, this presented a moral dilemma. When he met Norman, he knew he wasn’t fit to
represent him, but a court of law was telling him that he was. “I took generic criminal law and
criminal procedure in law school, but that’s just two classes separating me from any person,” he
“I wouldn’t want me representing me.”
Goodwin decided to write a letter to the judge, John Mosely Jr, who had assigned him the case.
“I understand the current status of the indigent defense office, as well as my civic duty,” he
wrote. “But the possibility that a young man could spend a significant amount of time in prison
poses a difficult burden on me, considering my rudimentary knowledge of criminal procedure.”
The judge kept him on the case.
So Goodwin wound up at the Caddo correctional center, attempting to explain the situation to his
young client. “I tried to tell him about the constitution: that you have rights, that you have the
right to a qualified attorney,” Goodwin says.
“But the way things are, I think he was happy just to have any lawyer, period.”
As Louisiana continues to provide insufficient, unreliable funding for the legal representation of
the poor – “on a scale unprecedented in the history of American public defense”, warned an open
letter by the president of the American Bar Association – public defenders across the state have
barely scraped by, foregoing office necessities and laying off attorneys and essential staff.
Earlier this year, many of these offices had so few staff that they resorted to placing hundreds of
their clients – even those sitting in jail, awaiting trial – on “waitlists” to receive a lawyer.
“Conflict cases”, with multiple co-defendants requiring multiple lawyers, had become especially
overwhelming for the defenders to handle.
In Caddo Parish, where Ryan Goodwin was asked to help, budget shortfalls forced the public
defender to cut 12 attorney positions, leaving only 22 lawyers to handle more than 15,000 cases.
In Lafayette, another populous parish 215 miles south-east of Caddo, the defender had to cut 47
of 65 attorneys. The waitlist there has more than 4,500 defendants, many facing life in prison.
The issue now facing judges and courts across the state is how to ensure a functional – and
constitutional – justice system in the wake of these shortages. In New Orleans, for example,
Judge Arthur Hunter ruled on 8 April that poor defendants sitting on a waitlist must be released
from jail until the public defender can represent them. Prosecutors are appealing several of those
defendants’ cases .
Everywhere else in the state, however, judges have taken more conservative approaches.
“I’m not going to be the one that lets one of them out, unless a higher court tells me I must,”
says Jacque Derr, the district judge of Winn Parish, a rural area in central Louisiana. “What I’m
scared of is some serious offender who is guilty ending up walking down our streets because of
this … All I can do is find a lawyer to agree to do it, or else these suckers are fixing to be home
This summer, that is exactly what many of Louisiana’s judges have done. Judge Derr has
conscripted his city prosecutor to also help out as a public defender. And instead of releasing
inmates, the judges in Caddo Parish and elsewhere have appointed non-criminal attorneys like
Goodwin to take criminal cases that they may not be equipped for.
“It’s a way of trying to paper over a funding problem without funding – to make sure that no
matter what, they can keep their prosecutions going,” says Stephen Singer, a law professor at
Loyola University and formerly the chief of trials and general counsel of the New Orleans public
defender’s office. “Their ‘solution’ is to put up cardboard cut-outs of defense lawyers in place of
actually spending the money on real public defenders.”
The city was also home to a branch of the Standard Oil company, but Louisiana’s oil and gas
industry has struggled in recent years, leading to an economic downturn that affected funding for
public services such as indigent defense. Today, casinos and strip clubs light up its mid-rise
skyline, and billboards for lawyers (“One Call, Y’all!”) line the highways.
On a humid day in June, many of those lawyers are gathered for a luncheon thrown by the
Shreveport Bar Association. Dressed in seersucker suits and bow ties, they are crowded around
the buffet, spooning fried catfish and black-eyed peas on to their plates. Between bites, everyone
is commiserating about the public defender’s funding crisis, and how ill-equipped they are to fill
in. “I just got another one this week!” says Richard Lamb, a tax attorney who admits he has
never argued a case in court.
The analogies seem to come easy:
“It’s like asking a dentist to do heart surgery,” Lam ...
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