How Can We Improve Access to Justice in the Criminal System?

by Rebecca Richardson

Table of Contents

INTRODUCTION........................................................................................................................... 2

DEVELOPMENT OF THE INDIGENT DEFENSE SYSTEM...............................................................4CONSTITUTIONALLY ESTABLISHED............................................................................................ 4SUPREME COURT’S INTERPRETATION OF THE SIXTH AMENDMENT............................................4

DEFICIENCIES IN THE CURRENT INDIGENT DEFENSE SYSTEM.................................................6FUNDING................................................................................................................................... 6

Underpaid Defense Attorneys................................................................................................ 9Overworked Defense Attorneys............................................................................................ 10Incentives Not to Become a Defense Attorney......................................................................11

INADEQUATE SUPPORT STAFF................................................................................................. 12Investigators........................................................................................................................ 13Experts................................................................................................................................ 14Secretaries and Additional Support Staff.............................................................................14Inadequate Technology........................................................................................................ 15

THERE’S NO MALPRACTICE IN INDIGENT DEFENSE.................................................................16EFFECT ON IMPOVERISHED CRIMINAL DEFENDANTS DUE TO INADEQUACIES IN THE SYSTEM. 18

Increased Guilty Pleas......................................................................................................... 18Increased Convictions and Longer Sentences......................................................................18

WAYS TO IMPROVE THE CURRENT SYSTEM............................................................................19A HIGHER BURDEN OF PROOF................................................................................................. 19REDUCE CASELOADS............................................................................................................... 21SALARY EQUALITY................................................................................................................. 21STATE COMMISSIONS PROJECT................................................................................................ 23HYBRID PROGRAM.................................................................................................................. 26

CONCLUSION............................................................................................................................. 27

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INTRODUCTION The criminal justice system in the United States has been in a constant state of

development and growth since the inception of the United States. With time, many

Constitutional rights have expanded and evolved to provide American citizens with greater

protection under the law. However, there is one area of criminal law that has remained stagnant

since its inception- the indigent defense system. In Gideon v. Wainwright the Supreme Court

ruled that criminal defendants who are unable to afford an attorney must have one appointed to

them.1 Without this protection, the Court ruled that a defendant would not be ensured a fair

trial.2

Congress passed the Criminal Justice Act of 1964 to ensure that the Court’s ruling was

upheld.3 The Court and Congress made initial efforts to create economic equality in the justice

system by ensuring that impoverished defendants had an attorney. Yet, over time, the efforts to

maintain and sustain such equality have subsided and the impoverished are left with severe

inequality in the criminal justice system that often results in harsher prison sentences, increased

guilty pleas, and increased convictions.

For example, in Tyler, Texas, Henry Clark was accused of a drug-related offense and

spent six weeks in jail before he was actually appointed an attorney.4 Additionally, Clark spent

another seven weeks in jail before the District Attorney’s Office released the case once they

realized that the wrong man had been arrested.5 At the end of it all, Clark had lost his job, his

1 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (discussing the right to counsel for all indigent defendants’ in felony or capital cases applies to the states ). 2 Id. at 345. 3 John J. Cleary, Toward a More Effective Right to Assistance of Counsel, LAW AND CONTEMPORARY PROBLEMS, 1995, at 65.4 Brooks Egerton, They Had the Wrong Man, but No One Believed Him, DALLAS MORNING NEWS, July 16, 2000 at 27A. 5 Id.

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home, and his car and spent months in a homeless shelter.6 Sadly, Clark’s situation is neither the

most unusual nor the most deplorable; it is simply one of many.

Part I of this note will discuss the development of the indigent defense system. Part II

will discuss the deficiencies in the current indigent defense system and the reasons for those

deficiencies. Part III will address the impact that the inadequacies in the system have on those

who are most affected, the impoverished. Part IV will consider ways to improve the current

system.

The Declaration of Independence proclaims that “all men are created equal.” The

Supreme Court in Gideon declared that even impoverished defendants are entitled to a fair trial

by having the right to appointed counsel. Unfortunately, all men are not treated equally in

today’s criminal justice system, and one’s economic standing, or lack thereof can be the

difference between spending a lifetime in prison or merely receiving probation.

The indigent defense system has fallen short in the past, but the problems of the current

system could be remedied through the mandatory creation of state commissions as well as a

federal commission to examine the current problems in the system and implement change.

However, in order to produce solutions for the indigent defense system and thereby

provide equal access to justice for all defendants, one must first fully understand the issues

preventng the current system from achieving such a goal.

DEVELOPMENT OF THE INDIGENT DEFENSE SYSTEM

CONSTITUTIONALLY ESTABLISHED

The Sixth Amendment of the United Sates Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, 6 Id.

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by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment clearly states that a criminal defendant is entitled to an attorney to

defend him in federal court.

SUPREME COURT’S INTERPRETATION OF THE SIXTH AMENDMENT

Initially, a defendant’s Sixth Amendment right to counsel was not addressed by the

Supreme Court. It was not until the 1930s that the Court began to heavily consider the Sixth

Amendment right to counsel.7 In Powell v. Alabama the Court held that an indigent defendant is

entitled to counsel when being charged with any capital offense.8 In 1938, the Court broadened

the right to counsel for indigent defendants, stating that this right must be afforded to every

indigent defendant being charged with a felony.9

After so much development with the Sixth Amendment right to counsel, the Court

suddenly made a decision contrary to all the progress that had been made. The decision in Betts

held that the right to counsel for indigent defendants did not apply to the states through the

Fourteenth Amendment.10 This setback was only minor. In 1963, the Court decided the most

pivotal case concerning indigent defendants, Gideon v. Wainwright was a foundational case that

7 Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 HASTING L.J. 1031, 1041 (2006) (discussing indigent defendants’ right to counsel). 8 Powell v. Alabama, 287 U.S. 45 (1932) (discussing right to counsel for capital offense).9 Johnson v. Zerbst, 304 U.S. 458, 463 (1938) (discussing indigent defendants’ right to counsel in a felony offense).10 Betts v. Brady, 316 U.S. 455, 473 (1942) (discussing that right to counsel for indigent defendants does not apply to the states).

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reversed Betts,11 and the case has been the center of much change and controversy in the criminal

system.

In Gideon the petitioner, Clarence Gideon, brought habeas corpus proceedings against

the Director of the Division of Corrections.12 Gideon was convicted in a Florida state court of

breaking and entering with an intent to commit a misdemeanor; it was a felony in the state of

Florida.13 Gideon could not afford an attorney and asked the state court to appoint one on his

behalf; the state court refused.14 Gideon feebly attempted to defend himself; not surprisingly,

this resulted in a guilty conviction causing Gideon to become a convicted felon.15

The Court reviewed their precursory rulings and determined that Betts was a substantial

departure from the Court’s prior decisions.16 A defendant’s access to justice in the criminal

system, to a fair trial, and to the right to be heard is contingent on the defendant having someone

on his side to advocate for him. Therefore, the Court held that every indigent defendant has the

option to retain counsel.

What many failed to realize is that, in spite of the Court’s ruling, the battle to ensure

equality in the criminal system, regardless of a defendant’s economic status, had just began.

Many questions were left unanswered, such as, what exactly does this broad statement of right to

counsel entail? What about indigent defendants who have been appointed an attorney, but have

no contact with him until there next court date?

11 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (discussing the right to counsel for all indigent defendants’ in felony or capital cases applies to the states ).12 Gideon, 372 U.S. at 336.13 Id. at 337.14 Id.15 Id..16 Id. at 345.

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Gideon left many issues unresolved, and, as such, its ruling has been diluted while the

indigent defense system is still filled with such extreme and vast deficiencies.

DEFICIENCIES IN THE CURRENT INDIGENT DEFENSE SYSTEM

FUNDING

The current system is permeated with deficiencies that can be heavily attributed to the

lack of funding. Citizens’ lack of concern for the indigent defense system may be attributed, in

part, to the feeling that the indigent defense system does not affect them. This is furthest from

the truth. A decrepit system has an impact on everyone in the community. For example, the

state of Oregon was no longer able to pay public defenders due to the excess of cases; to solve

this problem, the state delayed prosecution of twenty thousand crimes.17 As a result, thousands

of criminals were released back into the community.18

The average budget allotted to state-funded prosecution of criminals is $5 million per

year; however, less than $3 million per year is allocated to the indigent defense system.19 At the

federal level, the same problems arise. For example, in 1998 the approximate budget for

funding for the Federal Bureau of Investigation, the Drug Enforcement Administration, and the

U.S. Attorney’s Office was approximately $5.5 billion.20 However, the federal indigent defense

system was allotted approximately $400 million for that year.21

17 Kyung Lee, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 AM. J. CRIM. L. 367, 374 (2004) (discussing the efect of Gideon). 18 Id. at 374. 19 Adam M. Gershowitz, Raising the Burden of Proof: A Default Rule for Remedying the Under-Funding of Indigent Defense, SSRN 1 (2006) (discussing remedies for the current indigent defense system).20 Id. at 6.21 Bob Sablatura, Study Confirms, Money Counts in County Courts; Those Using Appointed Lawyers are Twice as Likely to Serve Time, HOUS. CHRON., Oct. 17, 1999 at A1.

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The table below notes the annual budget for the Oklahoma Indigent Defense System.

Although this budget seems rather large, in 2006, merely one District Attorney’s Office in

Oklahoma received a $9 million budget for the fiscal year.22 Its budget was almost twice the size

of that allocated to their counterparts in the local indigent defense system.

Oklahoma Indigent Defense System Budget

ProgramFY 2004

BudgetFY 2005

BudgetFY 2006

BudgetFY 2007

BudgetAppellate Services $3,488,354 $4,214,114 $4,613,231 $4,636,341

General Operations $742,714 $661,838 $652,838 $701,006

Trial Services $4,329,303 $4,182,026 $4,346,280 $4,376,373

Non-Capital Contracts $4,999,082 $5,602,312 $6,162,040 $6,569,732

Regional Offices $1,946,460 $2,198,074 $2,387,466 $2,535,185

Forensic Testing $650,000 $655,000 $655,00 $650,000

TOTAL $16,115,913 $17,513,364 $18,626,855 $19,468,637

In a few states, Pennsylvania and Utah, the indigent defense system is not funded by the

federal or state governments; instead the counties are given the responsibility of funding the

indigent defense systems.23 The District of Columbia is unique in that it receives all of its

funding for indigent defense from the federal government.24

These severe discrepancies in funding causes one to question how public defenders can

provide a fair defense if the money funded to their system is substantially lower than that of their

prosecutorial counterparts? The table below depicts how various state indigent defense systems

are funded.

Full State Funding More Than50% State

Full County

More Than 50%

22 Wes Lane for DA, http://www.weslaneforda.com/ (last visited November 15, 2007). 23 Erin Evertt, Salvation Lies Within: Why Mississippi Courts Can and Should Step in to Solve Mississippi’s Indigent Defense Crisis, 74 MISS. L. J. 213, 219-220 (2004) (Comment).24 See Id.

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Funding Funding County

Funding

Alaska MissouriAlabama MontanaArkansas New HampshireColorado New JerseyConnecticut New MexicoDelaware North CarolinaFlorida North DakotaHawaii OregonIowa Rhode IslandKentucky TennesseeMaine VermontMaryland VirginiaMassachusetts West VirginiaMinnesota WisconsinMontana Wyoming

Alabama

Kansas

Oklahoma

Pennsylvan

ia

Utah

ArizonaCalifornia GeorgiaIdahoIllinoisIndianaLouisianaMichiganMississippiNebraska NevadaNew YorkOhio South CarolinaSouth DakotaTexas Washington

THE SPANENBERG GROUP (2005)

Indigent defendants account for 80% of criminal cases; this is, of course, a large portion

of criminal defense; however, one must consider that criminal prosecutors must prosecute 100%

of crimes that occur.25 Thus, it is understandable that criminal prosecutors need more funding

because their burden is greater. Although this reasoning is valid, the disparities in funding

between the prosecutors and indigent defense system are greater than merely 20%.

On the state level, there are many examples of underfunding. In 1999, Harris County in

Houston, Texas allocated $26 million for the Harris County District Attorney’s Office while $13

million dollars was spent on the indigent defense system.26 The state of Mississippi spent

25 Gershowitz, supra note 19, at 7. 26 See Id.

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approximately $16 million to prosecute felony cases in 2000 while the indigent defense system

only received $9 million of state funding.27

The ripple affects of under funding extend far beyond concerns of attorney

compensation. The state of Louisiana has the highest adult incarceration rate in the nation;

perhaps because merely $2.10 per capita is spent for indigent defense.28 Thus, it is of little

surprise that so many defendants are incarcerated. As noted above, several other problems arise

as a result of an under funded system.

Underpaid Defense Attorneys

The discrepancies in state and federal funding become even more discouraging when

considering how much public defenders are compensated. For example, the 2000 study of the

public defenders in a Georgia County revealed that public defenders were compensated

approximately $49.86 per case.29

The starting salaries for public defenders and district attorneys are comparable,

the disparities become greater when considering earning potential. For example, in California

the public defender salaries range from $39,000 for an entry level position to $112,000 for the

public defender while the assistant district attorneys earn $52,000 and the District Attorneys earn

$168,000.30 The pay gap is much larger for the maximum amount a district attorney can earn as

opposed to a public defender. In 2002, public defenders in Wayne County, Michigan were

compensated approximately $6 to $12 per hour when considering their heavy caseload with the

amount of compensation they actually received.31 27 Id. at 8. 28 Backus & Marcus, supra note 7, at 1050.29 Gershowitz, supra note 19, at 8.30Law.com, http://www.law.com/special/professionals/nlj/earn/earns_4.html (last visited November 15, 2007).31 Gershowitz, supra note 19, at 8.

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Overworked Defense Attorneys

It is likely difficult for attorneys who want to advocate fully for each of their

clients but cannot because of the vast number of clients they represent. As such, not only do

indigent defendants become victims of the crumbling indigent defense system, the public

defenders become victims as well. The American Bar Association has provided guidelines and

principles for the indigent defense system. Principle Five states, “Defense counsel’s workload is

controlled to permit the rendering of quality representation.”32

The National Advisory Committee suggests that the maximum cases per year per

attorney should be as follows: 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health,

or 25 appeals.33 This means that an attorney has exceeded the amount of cases he can reasonably

handle if any of the above categories are exceeded. The ABA has provided estimates of the

hours of preparation that go into various types of cases. For example, a capital case requires an

average of 1,900 hours from an attorney if it results in a trial and an average of 1,200 hours if it

results in a guilty plea.34

Unfortunately, these standards are rarely abided by. In Connecticut, public defenders

may be required to represent as many as 1,000 indigent defendants per year; in Minnesota, a

public defender quit his job because the excess of cases was overwhelming.35 In one year the

attorney had 135 felony cases and 400 misdemeanors.36 In the span of seven months, a

Louisiana attorney represented approximately 418 indigent defendants.37

32 AMERICAN BAR ASSOCIATION, ABA Ten Principles of a Public Defense Delivery System, 2 (2002).33 Id. at 5. 34 Id. at 5. 35 Scott Wallace & David Carroll, The Implementation and Impact of Indigent Defense Standards, 31 SO. U. L. REV. 245, 269 (2004) (discussing deficiencies in the indigent defense system). 36 See Id.37 Gershowitz, supra note 22, at 11.

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In Clark County, Nevada, the average court appointed attorney had approximately 1,400

juvenile cases in 2001.38 Even in states where the caseloads are not alarmingly high, they are

still unacceptably high. In Fairfax County, Virginia, public defenders are appointed to

approximately 400 cases per year39 Even this “small” caseload is substantially beyond ABA

standards.

Incentives Not to Become a Defense Attorney

Another impact created from an underfunded indigent defense system is the incentive to

not become a public defender that is created. Public defenders regularly make much less money

than their prosecutorial counterparts.40 Additionally, the word “justice” is usually synonymous

with the U.S. Attorney’s Office or the District Attorney’s Office, not the Public Defender’s

Office.41

The rewards from one’s chosen line of work can be much greater for those who choose

to become prosecutors as opposed to public defenders. Attorney often use the District

Attorney’s Office or the U.S. Attorney’s Office as a way to move up the political ladder into

politics or judgeships.42 Public Defenders are less likely to be rewarded for their line of work, as

a community of voting citizens is less likely to vote for a candidate that defended indigent

defendants in his previous career. For example, in 2005 the state lieutenant governor of Virginia

attempted to run for the governor of Virginia; the gubernatorial candidate was accused of being

“an ACLU lawyer who defends death row inmates.”43 In reality, the candidate had been

38 Backus & Marcus, supra note 7, at 1055. 39 Id. at 1056.40 Lee, supra note 17, at 379.41 See Id.42 See Id. 43 Margaret Edds, The ACLU, Death Penalty, and Gubernatorial Spin, Virginia-Pilot, Jan. 2, 2005 at J1.

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appointed to represent two death-row inmates on appeal. Unfortunately, this record was not

something that the candidate could proudly display at an election.

INADEQUATE SUPPORT STAFF In addition to severely losing the funding battle, public defenders are also losing the

battle when it comes to having adequate support services and staff. State and federal prosecutors

often have support staffs that are larger than the actual number of attorneys in the office.

Support staff are not a luxury but a necessity for attorneys to adequately advocate for their

clients.

According to the Supreme Court, “a criminal trial is fundamentally unfair if the State

proceeds against an indigent defendant without making certain that he has access to the raw

materials integral to the building of an effective defense.”44 In order for a defendant to have

“meaningful access to justice” and “build an effective defense,” raw materials such as

investigators and experts even secretaries must be available. Without these an indigent

defendant cannot have a fair trial.

Investigators

Investigators are an essential part to building an effective defense: they are specially

trained experts that collect evidence, process that evidence, and interview witnesses.45 Although

lawyers are trained and specialize in law, the field of investigation is far outside their realm of

expertise. Yet, public defenders around the nation are being forced to act as investigators as well

as attorneys. For example, in Mississippi, a public defender can only get an investigator for his

cases if he pays for it himself.46 In Ohio, a judge decided that having a defense investigator in a 44 Ake v. Oklahoma. 470 U.S. 68, 77 (1985) (discussing that indigent defendant must have certain tools in order to have effective right to a fair trial).45 Backus & Marcus, supra note 7, at 1097.46 Id. at 1098.

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murder trial was unnecessary because the public defender had been an investigator previously,

thirty years before.47

In Montana, New York, Virginia, Pennsylvania, and Georgia, public defenders are not

entitled to investigators to mount their defenses.48 While public defenders usually can not

manage to get even one investigator, prosecutors have access to the police department

investigators and/or their own investigators to assist with investigation for cases.49

Experts

Unfortunately, the likelihood of a public defender receiving an expert witness for his case

is much like the outcome with receiving investigators, unlikely. Experts are sometimes needed

to evaluate forensic evidence or DNA samples.50 Experts are viewed as a necessity for

prosecutors to have, yet as a luxury for defense attorneys to have. In Georgia, a public defender

noted that every time he has requested an expert for his case, he has been denied one by the

courts.51

In Virginia a judge denied the use of a DNA expert by the defense in a murder case that

was seven-years old.52 Re-testing and analyzing the DNA with an expert to testify to his

findings was pivotal to the case; however, the judge agreed with the prosecution’s argument that

the cost of an expert would be too great an expense to the state.53

47 Id. 48 Id..49 Id at 1099. 50 Id. at 1100.51 Id.52 Id.53 Id.

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Secretaries and Additional Support Staff

As noted earlier, public defenders have heavy caseloads, thus it is important that their

time is utilized most efficiently – by addressing legal matters. Unfortunately, many public

defenders spend much of their time answering phones or doing other secretarial work.54 In Lake

County, Montana, the two public defenders in the public defenders office function with no

paralegal or secretaries.55 As a result, the attorneys must spend much of their time answering

phones or doing other administrative work.56 For example, Alaskan public defenders must take

time away from their legal obligations to find files, copy documents, and answer phones.57

Inadequate Technology

With the development of the digital age, having access to computers and updated

technology is essential in any professional field. The current process in the legal profession is to

submit typed documents to the court as opposed to handwritten legal documents. Therefore,

when public defenders in Montgomery County, Ohio, have no access to adequate technology in

their offices, many bring their personal computers or laptops to the office in order to draft

motions and prepare other essential materials.58

In Lake County, Montana, the public defenders do not have access to legal research

electronically or through a library. When they decide to conduct legal research, they must drive

seventy miles to nearest facility at the University of Montana Law School library.59

Pertinent here, the disparity between what prosecutors are provided and what public

defenders are provided is startlingly apparent. Even in counties where the public defenders are

54 Id. at 1101.55 NAT’L LEGAL AID & DEFENDER ASSOC., Assessment of Indigent Defense Services in Montana, 21 (2004). 56 See Id. 57 Backus & Marcus, supra note 7, at 1101.58 NAT’L LEGAL AID & DEFENDER ASSOC, supra note 55, at 19.59 See Id.

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provided with the basic tools, they are still denied equipment and supplies that prosecutors are

supplied with. In San Bernardino County, California, the public defender’s office is provided a

few technological tools to conduct their work but items such as cell phones and digital cameras

are not provided to the office investigators.60 However, the prosecutors in San Bernardino

County are provided digital cameras and cell phones.61

For example, in 2005 the public defender’s office in Connecticut had to use their funding

to update the technology in their offices; the computers were updated as well as electronic legal

research.62 Compared with the rest of the nation, Connecticut’s indigent defense system seems

to be advanced; however, while the public defenders were updating computers, Connecticut

prosecutors were being trained to use state-of-the-art legal software to assist in presenting more

compelling audio and visual evidence to juries.63

THERE’S NO MALPRACTICE IN INDIGENT DEFENSEThe Supreme Court has determined that the burden rests with the defendant to prove

whether an attorney’s inadequacies in court affected the outcome of the defendant’s case.64 The

burden rests with the defendant to prove that the attorney’s counsel “fell below an objective

standard of reasonableness.”65 Additionally, the court presumes that the attorney’s conduct was

reasonable.66 Although the American Bar Association maintains that the conduct of indigent

defense attorneys will be reviewed methodically and determinations will be made concerning the

60See Id. 61 Backus & Marcus, supra note 7, at 1102.62 COMM. DIV. OF PUBLIC DEFENDERS SERVS., Annual Report (2005), available at http://www.ocpd.state.ct.us/Content/Annual2005/2005Chap6.htm (last visited November 15, 2007). 63 Backus & Marcus, supra note 7, at 1102.64 Strickland v. Washington, 466 U.S. 688, 689 (1984) (discussing test for establishing ineffective counsel). 65 See Id. 66See Id.

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efficiency and quality of counsel, such standards or principles seem to be falling by the

wayside.67

One is reminded of the infamous story of a public defender in Houston, Texas who slept

during his client’s trial in 1984.68 Calvin Burdine was on trial for murder with a possibility of

the death penalty.69 Applying the Strickland test, the Texas Court of Criminal Appeals held that

the attorney’s conduct was constitutionally permissible.70

More recently, in 1991 Attorney John Been slept soundly throughout much of his client’s

capital murder trial with his head cocked back and his mouth continually falling open.71 The

trial court stated that although the attorney was sleeping during the proceedings; his conduct still

met constitutional standards since the Sixth Amendment does not require that an attorney is

awake during the proceedings.72

Courts have found that attorneys under the influence of alcohol and drugs have still

managed to adequately defend their clients.73 For example, Jimmy Bromgard was imprisoned

for sixteen years due to the incompetence of his public defender.74 Bromgard was accused of

raping a minor, DNA evidence eventually proved that Bromgard was not the perpetrator.75

Unfortunately, Bromgard’s public defender failed to perform basic lawyering skills that could

have proved his clients innocence such as investigating, hiring a forensic expert to oppose the

67 AMERICAN BAR ASSOCIATION, Ten Principles of a Public Defense Delivery System 2 (2002)68 Ex parte Burdine, 901 S.W.2d 456 (Tex. Crim. App. 1995) (applying the Strickland test). 69 Id. 70 Ex parte Burdine, 901 S.W.2d 456 (Tex. Crim. App. 1995) (applying the Strickland test). 71 John Makeig., Asleep on the Job, HOUS. CHRON., Aug. 14, 1992, at A35.72 See Id. 73 Lee, supra note 17, at 382.74 See Id.75 Id. at 382.

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state’s expert, filing motions, giving an opening or closing statement, or filing an appeal of the

conviction.

EFFECT ON IMPOVERISHED CRIMINAL DEFENDANTS DUE TO INADEQUACIES IN THE SYSTEMWith the extensive deficiencies in the current system, one must consider the implications

this has for those who are most affected- indigent defendants.

Increased Guilty Pleas

As indigent defendants are quickly shuffled through the system, they are more likely to

plead guilty to the charges against them. Public defenders’ overwhelming caseloads may be a

catalyst to these guilty pleas; with an overabundance of cases and low funding, there is no time

or money to investigate, appeal, or proceed with a trial.76 The American Bar Association noted

that 42% of indigent defense cases within a five-year period ended with guilty pleas at the

arraignment, the first time the public defender met his client.77 The public defenders did not

interview their clients, interview other witnesses, or investigate crime scenes.78

Increased Convictions and Longer Sentences

Indigent defendants are also sentenced to incarceration at much higher rates than criminal

defendants with hired counsel. In a 1999 study of Harris County, Texas, looking specifically at

the 30,000 felony cases that were filed for the year, indigent defendants were sentenced to jail or

prison 58% of the time while defendants with private attorneys were only sentenced 29% of the

time.79 According to a study conducted by the United States Bureau of Justice, convictions in

federal court are approximately 11% higher for indigent defendants that for those with private

76 Gershowitz, supra note 22, at 13.77 Id. at 15. 78 See Id.79 Bob Sablatura, Study Confirms Money Counts in County’s Courts, HOUS. CHRON., Oct. 17, 1999, at 1, 1999 WL 24259732.

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counsel, 88% compared to 77%, respectively.80 Unfortunately, the disparities in state courts

were larger with 71% of indigent defendants receiving convictions while only 54% of

defendants with private counsel received guilty convictions.81

Additionally, the art of plea bargaining is a necessary skill for defense attorneys to

employ in an effort to get shorter sentences for their clients. Indigent defendants are possibly

sentenced to longer sentencing in jail or prison than defendants are with hired counsel because

public defenders often do not see their clients until later in the criminal proceedings.82 As a

result, the ability to plea bargain before a grand jury indictment is lost for indigent defendants.83

WAYS TO IMPROVE THE CURRENT SYSTEM

A HIGHER BURDEN OF PROOFThe most controversial and unique remedy is implementing a higher burden of proof in

cases where the defendant is indigent. Once a state court has determined that an indigent

defense system is underfunded, it will go one step further and actually implement a remedy.84

This remedy will create a subsequent higher standard for all cases involving indigent defendants;

prosecutors will no longer prove guilt “beyond a reasonable doubt;” instead, they must prove

guilt “beyond all doubt.”85

This higher burden could be eliminated by the state’s legislature if it provides adequate

funding for the indigent defense system.86 The higher burden would provide an incentive for

80 DOJ, Indigent Defense Statistics, http://www.ojp.usdoj.gov/bjs/id.htm#caseload (last visited November 15, 2007).81 See Id.82 Morris B. Hoffmam, An Empirical Study of Public Defender Effectiveness: Self- Selection by the Marginally Indigent, 3 OHIO ST.. J. CRIM. L. 233 (2005) (discussing deficiencies in the indigent defense system).83 Gershowitz, supra note 19, at 19.84 Id. at 34. 85 Id. at 34. 86 Gershowitz, supra note 19, at 34.

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legislatures to adequately fund their indigent defense systems. Legislatures could prove their

compliance by ensuring that indigent defense cases do not exceed the ABA standards or by

ensuring that the funds indigent defense systems receive are equivalent to that of state

prosecutors.87

Therefore, the state legislatures would implement changes and would be held accountable

by indigent defense commissions.88 Indigent defense commissions are typically composed of

individuals appointed by the legislature, the Governor, or the state supreme court.89 The

commissions would conduct a yearly analysis to determine if the state was meeting at least one

of the two requirements; if one of the requirements is met, then the lower burden of “beyond a

reasonable doubt” would be restored.90

One might question whether a higher burden is constitutionally permissible? The Court

interpreted that the “beyond a reasonable doubt” burden was required by the Constitution, but

this requirement seems to be a minimum and not a maximum requirement.91 Therefore, at a

minimum, the “beyond a reasonable doubt” burden must be established, but the Court has placed

no limit on how high this burden may be raised. Additionally, this proposal does not violate the

Equal Protection Clause.

The 20% of criminal defendants who are non-indigent defendants will not be entitled to a

higher burden of proof; however the Equal Protection Clause only comes into effect when a

suspect class of persons is treated differently.92 For equal protection purposes, wealth is not

87 Id. at 42. 88 THE SPANENBERG GROUP, Statewide Indigent Defense Systems (2005). 89 Id. 90 Gershowitz, supra note 19, at 44.91 Adam M. Gershowitz, The Invisible Pillar of Gideon, 80 IND. L.J. 571, 585 (2005) (discussing the Gideon standard for indigent defense that has not been met). 92 San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

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considered a suspect or even quasi-suspect class. Therefore, the proposal should withstand

judicial scrutiny as long as it has a “legitimate governmental purpose” and the means to achieve

this proposal is “rationally related to the purpose.”93

REDUCE CASELOADSAnother controversial yet plausible solution to the indigent defense crisis is

to decriminalize certain non-violent offenses such as drug possession, suspended licenses, or

disturbing the peace.94 For offenses that allow jail time but where the court rarely requires jail

time, these offenses could become civil offenses.95 Categorizing certain offenses as civil would

alleviate the need for public defenders and reduce the case overloads of the indigent attorneys.96

This would also allow the courts, prosecutors, and indigent offenders to focus on offenses that

are more harmful to the community as well as carry more serious punishments for the

defendant.97

SALARY EQUALITY Another option to level the playing field is to provide loan absolution for public

defenders. Since public defenders’ compensation is lower than prosecutors, public defenders

should automatically qualify for a student loan exemption program.98 This would allow in

extreme circumstances where pay is particularly low for public defenders’ law school loan debts

to be wiped away completely. In circumstances where the public defenders are receiving

substantially lower compensation then the state or federal prosecutors, the government could

93 Williamson v. Lee Optical, 348 U.S. 483 (1955); Washington v. Davis, 426 U.S. 229 (1976). 94 Backus & Marcus , supra note 7, at 1125.95 See Id. 96 Gershowitz, supra note 19, at 43.97 Backus & Marcus, supra note 7, at 1125.98 Backus & Marcus, supra note 7, at 1126.

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provide forgiveness for half of the debt or at least place the public defender’s student loans at a

much lower interest rate.

In 2001 the American Bar Association created the Commission on Loan Repayment and

Forgiveness.99 This commission was implemented to study the effect that accepting a public

interest law position has on recent law graduates who often have student loan debt upwards of

$80,000.100 Many recent graduates are forced to leave the public service field after a few years

because the benefits of working in such a field are outweighed by basic necessities such as

providing for one’s family and paying bills. Unfortunately, the Commission on Loan

Repayment and Forgiveness disbanded in 2003, but not before creating small changes in the

legal community.101 To date, approximately 30 law schools have some form of loan repayment

assistance programs.102

For example, law students graduating from Albany University anytime after 2004 may

receive loan forgiveness up to $10,000 per year for three years if they pursue public interest law.

Additionally, at the University of California, Berkley, School of Law, students with an income

below $58,000 may receive up 100% loan forgiveness. Lastly, the Charleston School of Law

provides a one-time grant of $2,500.

This program provides an excellent opportunity for the disparities in pay between public

defenders and district attorneys to be virtually eliminated with no additional costs to the state

legislatures. Perhaps the Student Loan Repayment and Forgiveness program should be

implemented not through law schools but through state governments. This will create a more

99 Curtis Canton & Frank Coffin, Pass It On, Vol. 11, No. 3, Spring 2002.100 See Id. 101 See Id. 102 American Bar Association, http://www.abanet.org/legalservices/probono/lawschools/pi_lrap.html (last visited November 15, 2007).

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uniform and standardized program that all schools of law must abide by. It will provide greater

incentives for law students to become public defenders and as a result possibly increase the

quality of representation and the quantity of attorneys willing to represent indigent defendants.

STATE COMMISSIONS PROJECT The State Commissions Project was implemented by the American Bar Association and

the Department of Justice Bureau of Justice Assistance in 1999 to oversee the creation of

indigent defense commissions in several states.103 The state commissions essentially study the

indigent defense systems in their own states as well as surrounding states and devise

improvements in the system.104 The commissions are typically composed of individuals in the

legal community such as judges, leaders of the bar association, legislators, deans of law schools,

and board members of the state’s legal aid programs.105 For example, the state of Maine created

a State Commission Project entitled the Justice Action Group (JAG).106 This commission went

to the private sector to fundraise for the indigent defense system and quadrupled the money

received the previous year.107 More importantly, this commission lobbies directly to the state

legislature and introduced a bill to increase the current court fine surcharge, this increase would

directly benefit legal aid.108 State commissions can serve as step-stones to produce change. The

table below provides examples of the diverse State Commission Programs in the various states.

103 Terry Brooks, Indigent Defense: Efforts to Improve State Systems, CRIMINAL JUSTICE MAGAZINE, Spring 2000 at 2.104 See Id. 105 Robert Echols, The Rapid Expansion of State Access to Justice Commission, MANAGEMENT INFORMATION EXCHANGE JOURNAL 2005 at 41. 106 Id at 42. 107 See Id.108 See Id.

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State Program Statewide Public

Defender System

Commission Director or Chief PD Selection

Process, Terms & Qualifications

Director or PD Duties & Responsibilities

Alabama None Not applicable

None Not applicable

Georgia

Georgia Public Defender Standards Council (independent agency within judicial branch, est. 2003), GA. CODE ANN. §§ 17-12-1 to -12-128.

YesEleven member council. Appointed by the Governor, Lt. Governor, Speaker of the House, Chief Justice of the Supreme Court, and Chief Judge of the Court of Appeals. One member from each of the state’s 10 judicial districts who serve four-year terms, plus a circuit public defender, selected by a majority of the circuit public defenders, who serves a two-year term.

Director appointed by Council. Must be member in good standing of the State Bar with at least three years experience in the practice of law.

Administer and coordinate the operations of the Council and supervise compliance with rules, policies, procedures, regulations, and standards adopted by the Council.

Massachusetts YesFifteen member Committee. Appointed by Justices of Supreme Judicial Court. Three-year term. Chair elected by the Committee.

Chief Counsel appointed by Committee. Attorney. Serves at pleasure of Committee.

Overall supervision of various divisions of committee. Perform duties as defined by the Committee. Authorize all payments certified by judges for private counsel.

THE SPANENBERG GROUP (2005)

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HYBRID PROGRAM Perhaps the best solution is simply to further develop the State Commissions Project as

opposed to creating a higher burden of proof. The State Commissions Programs are typically

composed of prominent and influential individuals in the legal community. These individuals

may have the power to create change within the indigent defense system, but they cannot do it

alone. First and foremost, each state implementing a commission should become a requirement,

not merely an option. By requiring states to create a commission or task force devoted solely to

investigating problems in the indigent defense system and remedying those problems, substantial

change will likely occur. Additionally, having an entity separate from the state to focus solely

on the indigent defense system will decrease disparities between public defenders offices and

district attorney’s offices by providing an objective third party.

Secondly, the commissions must be given more power. This could come from the courts

or from the legislature. Since the commission will be specializing in indigent defense issues, the

commission itself will best know how much money should be allocated for certain needs of the

system, when this money should be allocated, and to whom. The power of the commission

should exist solely in its ability to speak on behalf of the indigent defense system and by the

state legislatures according it due deference. For example, before allocating indigent defense

funds and before even determining how much to allocate to the indigent defense system as a

whole, the state should be required to seek the advice and counsel of the commission. Upon

receiving this advice, the state must give deference to the commission’s counsel regarding its

entire decision- making.

By giving the commission this added power, a checks and balances system remains in

place whereby the commission must answer to the state and the state must also answer to the 24

commission. Of course, one must consider what penalties will the states encounter by not

seeking the counsel of the commission or by not adhering to the Commission’s counsel?

Perhaps by establishing a Federal Commission to oversee the progress of state commissions as

well as provide added force to the state commissions’ advice, this problem will be alleviated.

The states will be aware that they must make some efforts to adhere to the counsel of the state

commissions since the Federal Commission will have the ability to affect the state’s federal

funding.

One concern with requiring state commissions and a federal commission is the additional

funding needed just to establish such commissions. However, the commissions will be

established with an expiration date in mind. They will not be permanent agencies but instead

will be temporary solutions established to create change in the current system. Once the

commissions are established, there will be a set date that they expire. If at this time, the state has

created substantial improvements in their indigent defense system, the commission will be

disbanded.

The states will be provided all the necessary tools to create change with the commission’s

research stating the areas most in need, providing budgets stating how much money is needed

and how it should be allocated. However, once change has been established, the power of

overseeing the indigent defense system will be given back to the states.

CONCLUSION

Although the indigent defense system seems overrun with problems and inadequacies,

there is still an opportunity to improve the current system. The Court did not begin addressing

the indigent defense system until the 1930s and major change did not occur until 1963 with

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Gideon. When viewed from this perspective, only forty years has passed; some may perceive

that this span of time as not truly long enough to create substantial change in the system, since

change takes time.

However, the indigent defendants that yearly receive harsher sentences, increased guilty

pleas, and increased incarcerations at a rate higher than their counterparts who retain private

counsel are not likely seeing the bright side of this problem. Over two hundred years has passed

since the inception of the United States, and since that time this nation has been in a constant

struggle concerning fundamental rights in an attempt to achieve the words written at the

country’s beginning in the Declaration of Independence, “All men are created equal.” One can

only hope that with each passing day, year, and decade this nation will eventually see that

statement become a reality in all facets of our lives.

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