Gideon Unfulfilled -

The Failure of Indigent Defense

by C. C. Simmons, JD Correspondent

Justice:Deniedmagazine, Issue 26, page 11

In 2002 while she was struggling to keep 295 accused teenagers out of jail and simultaneously defending the parents in 276 child neglect cases, attorney Lisa Tabbut was handling 16 separate felony conviction appeals.

In March 2003, unable to serve her 500+ clients effectively, Tabbut resigned. “Enough is enough,” she said as she ended her Juvenile Court contract with Cowlitz County in southwestern Washington state. That contract paid Tabbut about $86,000 per year - less than $150 per client - but didn’t limit the number of indigent defendant cases assigned to her.

Tabbut’s job had become a legal triage. “You decide who you can help and who’s not going to get help. It’s malpractice, It’s insane,” she said.

In jurisdictions all over the U.S., Tabbut’s predicament is repeated. Public defenders and court-appointed attorneys with limited experience and scant resources struggle to represent indigent defendants who are accused of crimes ranging from misdemeanor shoplifting to capital murder.

In 1963, the U.S. Supreme Court unanimously ruled that every defendant facing prison is entitled to be represented by counsel, irrespective of his or her ability to pay for it. (See Gideon vs Wainwright, 372 U.S. 355 (1963)) Today, Gideon’s promise is largely unfulfilled.

In 2000, the U.S. Department of Justice declared that public defense in the U.S. is in a “chronic state or crisis.” Nationwide, indigent defense services are failing their clients. Inadequate staffing, overwhelming caseloads, substandard compensation, flat-fee contracts, and legislative disdain to appropriate scarce resources to benefit those accused of murder, rape, robbery, and child molestation, all combine to create a near-insuperable task for those who represent indigent defendants. Consider the following discouraging news:

  1. Early in 2004, the Minnesota State Board of Public Defense announced that one-quarter of the state’s public defenders would be laid off due to budget shortages.

  1. In Lake Charles, Louisiana, the Public Defender’s Office had only two investigators for 2,550 felony and 4,000 misdemeanor cases.

  1. In Bucks County (northern Philadelphia), Pennsylvania, the Public Defender’s Office handled 4,173 cases in 1980. Twenty years later with the same number of attorneys on staff, the office handled an estimated 8,000 cases.

  1. The Committee for Public Counsel Services in Massachusetts handles more than 200,000 cases involving indigent defendants each year - with only 110 staff lawyers. That is an average of over 1,800 cases per lawyer.

  1. In San Diego County, California, the 1987 budget for the District Attorney’s office was $20 million while the Public Defender’s Office was funded at $19 million. In 2004, the DA’s budget had climbed to $100 million but the Public Defender’s Office received only $37 million.

  1. In Wisconsin, defendants with an annual income of $3,000 or more may not be eligible for a state-funded public defender. As a result, more than 11,000 Wisconsin defendants go unrepresented each year.

  1. In Louisiana where the vast majority of indigent defense is funded by revenue from traffic tickets, the accused gets an average of 11 minutes of a defense lawyer’s time.

  2. The salary for a public defender in Massachusetts starts at $35,000 annually while court-appointed defenders are paid as little as $30 per hour to represent an indigent client - the third lowest rate in the nation.

  1. In Lake County, California, just north of San Francisco, a flat-fee system is used for indigent defense. Lawyers in private practice are paid a flat fee to represent a client. There is no economic incentive for vigorous representation of the accused but rather a tendency to negotiate a guilty plea bargain and send the client to his fate.

Despite the Constitution’s Sixth Amendment mandate for assistance of counsel, the nation’s indigent defense system is failing. “The incompetent representation of the criminally accused - particularly indigents - is truly a scandal,” said Monroe Freedman, a legal ethics scholar at Hofstra University School of Law at Hempstead, New York.

The problem has become so great that, late in June 2004, the National Committee on the Right to Counsel launched a nationwide review of indigent defense services. The Committee includes law enforcement officials, prosecutors, defense attorneys, and former judges. The Committee was formed by the Constitution Project and the National Legal Aid and Defender Association of Washington, D.C. The Committee has undertaken a comprehensive 18-month study of indigent defense systems and the people they are meant to serve. Seven jurisdictions from around the U.S. will be selected for on-site reviews.

A Committee spokesman explained it this way: Even though state and local governments are responsible for ensuring adequate counsel for defendants who cannot afford to hire their own lawyers, many people are nonetheless still convicted and imprisoned each year without any legal representation or with an inadequate one.

The balance is tipped too heavily in favor of the government when it comes to prosecution of persons without means who can’t afford private counsel,” said Timothy T. Lewis who served a decade on the U.S. Court of Appeals for the Third Circuit. Lewis added, “We really need to take a look at that. Who are we as people if we are not giving adequate and equal representation to those who can’t afford a lawyer?” Lewis is co-chair of the Committee.

Sources: The Boston Herald, the Los Angeles Times,

The National Law Journal, The Seattle Times.