by Brandon J.
Of the various factors which inevitably influence (and sometimes pervert) the fair administration of justice within the criminal court system, the Supreme Court’s landmark decision in Gideon v. Wainwright could optimistically be described as a step toward more equal footing in regard to representation by counsel for defendants. The Court held that right to the guarantee of counsel is ‘fundamental and essential to a fair trial’ and thereby obligatory upon States under the 14th Amendment. The Court specifically quoted a previous decision recognizing “the right to the aid of counsel is of this fundamental character.” (372 U.S. 335, 342-43 (1963), quoting Powell v. Alabama, 287 U.S. 45, 68 (1932).
But what of the ‘character’ of counsel guaranteed under the 6th and 14th Amendments? The Court made no representations as to the quality of counsel due a criminal defendant, and rightfully so. Other safe guards exist for defendants, namely the claim of ineffective assistance of counsel. Moreover, only the most naïve idealist could hope to achieve a system under which every defendant would be entitled to and receive uniform efforts by and assistance from counsel. Still, there is something to be said when the most recent standard of effective counsel, as provided by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), finds no ineffectiveness by defense attorneys who fall asleep during the cross-examination of their client (Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011)), suffer from alcoholism during trial (People v. Garrison, 47 Cal. 3d 746 (1989)), are suspended immediately after trial for poor mental health and would have been suspended prior to but for false promise to secure co-counsel (Bellamy v. Cogdell, 974 F.2d 302 (2nd Cir. 1992)), or are themselves convicted felons, only representing defendant as part of ordered probation despite lack of comparable prior experience (State v. Willie, 595 So.2d 1149 (La. 1992).
This low standard of counsel effectiveness is particularly concerning given the current state of affairs of public defense attorneys’ offices nationwide. Overworked and underpaid, these lawyers are usually the only counsel available to the approximate 80% of criminal defendants who cannot afford private attorneys. Yet with 90-95% of clients pleading guilty, it’s fair to wonder how effective this arrangement is for indignant defendants. Turns out, the American Bar Association has recognized significant deficiencies with the delivery and competence of indignant defense services and called for reform – in 2005. In its report, the ABA recognized several major, nationally prevalent factors negatively influencing public defense services, including poor compensation, excessive caseloads, and inadequate funding.
In regard to wages, the ABA report found that in many states, the starting salaries for public defense attorneys were very modest, and thereby deterred potential lawyers from such careers. Moreover, only beginning in 2010 have public defenders become eligible for government loan forgiveness. A more recent article suggested that “decent” rates for public defenders hovered around $65 per hour, and that some states actually capped the pay of public defenders. In regard to court assigned private attorneys, the rate wasn’t any better. As could be expected, the lowest bidding firms are often awarded such contracts, but in order to make a profit, they had to spend as little time as possible with each client. For instance, in New Orleans, attorneys had an estimated 7 minutes to spend on each case. In Alabama, 42% of defendants with assigned attorneys plead guilty on the day they met their attorney at arraignments. Additionally, the ABA found that in Illinois, for example, the going rate for cases assigned to attorneys hadn’t changed in 25 years, and that in Rhode Island and Massachusetts, the hourly rate ranged from $30-40 per hour. While the Department of Justice disbelievingly maintains that public defenders perform on par with private attorneys, it has admitted that the performance of assigned attorneys fares worse.
Not only are public defense attorneys underpaid, they have to manage ridiculous caseloads. The most recent recommendations for caseload limits were provided in 1973. Not only has the complexity of cases increased since, but so too has the number of incoming cases. However, the number of attorneys working in such offices has remained relatively stagnant. The ABA reported that attorneys in several states were handling twice as many cases as 30 years ago without additional lawyers and they exceeded the recommended caseloads by 35-50%. Unfortunately, despite the modest decline in total incoming cases in the past 6 years, these caseload statistics have held stable.
Perhaps most disconcerting is the discrepancy between government funding for prosecutors versus public defense attorneys. One analysis found that the expenditures per capita on criminal legal aid in England was $34 per person, compared to $10 in the US. Even worse, 29 states averaged expenditures of less than $10 per capita. Reflected as a percentage of GDP, a 2006 comparison showed that the U.S. spent less than the Ukraine, among many others. As a result of this insufficient funding, the ABA noted that many public defender offices suffered from inadequate training, outdated technology, and scarce expert witness funds.
In Gideon v. Wainwright, the Court held, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.” 372 U.S. 335, 344 (1963). Yet how can a defendant every hope to stand equal before the law, when the government charged with enforcing it greatly outspends in favor of the prosecution? In 2007, the national budget for prosecutors exceeded that of public defense attorneys by $3.5 billion. The next year, for every dollar spent on public defense, corrections cost taxpayers $14.
Although there are many factors contributing to the growing prison population, that last statistic depicts a society more concerned with locking defendants away than establishing guilt. And although the ABA released its findings and recommendations 8 years ago, little if anything has changed for the better. Indeed, as politicians continue to struggle over how to allocate government money, there is increasing concern that the rights of indignant criminal defendants, stigmatized from the moment of arrest, will be further marginalized. The end result is a system that perpetuates poverty and recidivism and thereby only further contributes to its own ineffectiveness.