In 2017, an interviewer asked Patrick J. Nolan, the director of the Criminal Justice Project at the American Conservative Union, about the chronic lack of funding for the public defender system. Nolan explained “it’s an easy way to chop money, because few people will be angry.” The public defender system, which, by definition, serves only the least powerful members of society, is in a state of neglect and has been for decades.
The result is a defender system which cannot provide effective counsel in most cases, and cannot even review many cases for years after an arrest takes place. “If the government can bring charges against you and you’re unable to have someone represent and defend you,” warned Nolan, “that’s the route to totalitarianism. You’re stripped of your rights.” Michael Barrett, director of the Missouri Public Defender system, described telling clients “‘we’re going to work hard on your case, but it’s going to be a while before I can get to you.’” Barrett said that this “tells defendants they have a choice to make. If they want their constitutional defense, they have to sit in jail for a few months.”
To have a just criminal justice system, we must have one system of defense which serves all accused people equally. This requires the abolishment of private criminal defense attorneys.
The editorial board of the Kansas City Star penned an op-ed calling for increased funding for Missouri’s public defender system. The board outlined cases in which the long-line for a defender resulted in an accused, with little to no evidence against, them waiting in jail for up to a year and a half, before their cases faced review; or the defendants plead guilty in exchange for release. A Kansas City 22 year-old, the board described, spent 13 months in jail for a robbery charge he was not guilty of, before his public defender had time to review the facts of his case.
Ruth Petsch, the head of the Kansas City public defender’s office, said of the man’s case “I wouldn’t say it was unique.” Attorneys in her office regularly handle 100 cases at a time. Petsch capped her attorneys’ caseloads at 100, refusing to take on more cases. If they were to increase their caseloads further, Petsch said her office would become a “plea factory.” A Kansas City judge called her stance unrealistic. He said, dismissively, “in a perfect world it would be lovely if everybody could handle a charge like wealthy people do.”
In his dismissal of Petsch’s policy, the Kansas City judge acknowledged a fundamental problem with our justice system: we have two. One for the rich and one for the poor. As Brian Stevenson, founder and executive director of the Equal Justice Initiative, observes “in many parts of this country, the opposite of poverty is not wealth. In too many places, the opposite of poverty is justice.” This is the reality, not just for this particular means tested program, but for all means tested programs.
Look to the difference in treatment provided to Medicare users versus those with private health insurers. Health Affairs researchers found that patients with Medicare had higher-than-expected mortality rates for all medical conditions, compared to the lower-than-expected mortality rates for those with private insurance. Both groups have insurance, but one method forces people to go to hospitals with less funding, overcrowding, and a lack access to newer, more expensive medical technology.
Many lower-class defendants do not have access to a disadvantaged version of effective counsel, despite their inability to afford the market rate for a competent attorney. They exemplify the most common problem with means-tested programs: people always fall through the cracks. A Wisconsin Assemblymember wrote an article in the Wisconsin Bar Journal, calling for an update to the state’s standards for indigency. Assemblymember McCormick wrote “under [the current] standards, a person making as little as $2.87/hour does not qualify for representation.”
The hourly wage necessary to meet the ‘self-sufficiency standard’ in Wisconsin is $12.15, for a single adult. This standard bases itself upon meeting basic needs without assistance: housing, child care, food transportation, and healthcare. An adult making less than 25% of the income needed to provide for basic needs, in Wisconsin, does not qualify for legal assistance.
There is no federal standard for the term indigent, which is the standard for publicly funded representation established in Gideon V. Wainwright, the Supreme Court decision guaranteeing effective representation as a constitutional right. The lack of a federal standard allows states to gut accessibility to public defender services, to cut costs.
Politicians promise a fictional, means-tested program, which excludes those undeserving of aid and includes everyone who needs it. It is clear this program does not exist, with healthcare, legal representation, housing, and other American entitlements, and many people fall through the proverbial cracks. Even if this program did exist, it would not provide the same care the rich receive.
The Case for a Universal Public Defender Program
In 2018, a William and Mary Law Review Study explained “excessive public defender caseloads, insufficient compensation for appointed and contract defense lawyers, limited access to attorneys, lack of ancillary resources critical to competent representation, and the resulting ineffective assistance of counsel, among other problems, can all be traced to inadequate funding.” This lack of funding is largely attributable to the patchwork of state and local funding, based on drastically different policies and in some cases arrest and court charges. However, local funding for public defenders is politically easy to cut, because those with influence loose funding for the services they provide.
It is a well-documented fact that the wealthy have more access to and influence over politicians; in contrast, programs to serve the poor have a consistent underfunding problem.
“It’s long been known that the better educated, those with higher incomes, participate more [in politics on] everything from voting to contacting politicians to donating,” explained Theda Skocpol, a Professor of Government and Sociology at Harvard. She continued “very systematically, [government] really responds much more to the privileged than to even middle-income people who vote.”
Donating, specifically, is the clearest differentiation between whose interests politicians represent, and who needs publicly funded services; two groups with no overlap. “Money has corrupted our political process,” said Harvard Law Professor, Lawrence Lessig, in a 2016 interview. “In the current [congressional] election cycle [as of October 2016], 158 families have given half the money to candidates. That’s a banana republic democracy.”
Universal programs do not require voters, or wealthy donors, to be selfless, and it makes them more popular. Social security is one of the most politically problematic programs to threaten, both because it helps older Americans who vote consistently, and because it is a universal program.
A 2014 poll by the National Academy for Social Insurance found 73% of Americans “don’t mind paying for Social Security because they value it for themselves.” This would be even more true of a universal public defender program: because the middle class and wealthy will not need monetary support as much as the poor. In addition, incarceration destabilizes any convicted person’s life, regardless of wealth, so it would be in everyone’s best interest to have adequate representation.
If the wealthy were dependent on the efficacy of public defenders, lobbyists and donors would push for a properly funded program. We should abolish the private practice of criminal legal defense and expand the public defender system to represent all criminal defendants.
Free market backlash
There were, of course, free-market solutions proposed to address the public defense crisis. Stephen Schulhofer and David Friedman wrote an article for the libertarian CATO Institute arguing for a government voucher program for indigents, instead of government-appointed attorneys. The authors argued that indigent defense “would cost no more than at present; attorneys would be compensated in the same way as before, with either hourly fees or lump-sum payments per case.”
This proposal is logistically complex, if not impossible. Public defenders held protests across the country for higher pay, as many now describe their current salary as less than a living wage. A protestor in Queens, New York, said last year into a megaphone, outside City Hall, “the only thing that [public defenders] are asking for is that they can live on the salary that they are getting.” The protestor, Jumanne Williams, continued “they’re not asking for high-powered attorney salaries. They’re not asking for outrageous amounts of money. They’re asking to be able to live in the city they love and feed their families. They are simply asking for parity.” So, if the government were to provide vouchers for the same value of public defender representation, no private attorney would accept it. Even if a low-quality attorney would accept the voucher, do free-marketeers not believe the best representation will cost the most?
Even if vouchers were of greater value than what public defenders currently receive for their time, the gap between the poor and those who can safely afford to hire an attorney without assistance would remain.
The free-market cannot solve the public defender problem, and the current system is a failure. As Nicholas J. Trenticosta, a New Orleans lawyer, argued, “no one should be sitting in the can without counsel and be told, ‘We want to kill you.’” He said “it’s always been funny to me when I hear people say, ‘Well, these guys don’t deserve a Cadillac defense.’ Why not? They’re trying to take your liberty away. What do they deserve, then?” In a country where 25 of 50 states still employ the death penalty, it is urgent to ensure an effective defense to all accused people, regardless of wealth.
The influence of wealth on U.S. politics is not a short-term problem, it is time to harness the wealth disparity to address an egregious human rights violation in the public defense system.