Underfunding Public Defenders, Jeopardizing 6th Amendment

90% of the more than 2.5 million charged with a crime in this country cannot afford a lawyer, according to Dean Strang, who shared his experience defending Steven Avery, the now famous Wisconsin man at the center of Netflix’s “Making A Murderer.” Forbes interviewed Strang to find out more about indigent defense (public defenders assigned to represent poor defendants who cannot afford a lawyer). His thoughts reiterate what many already believe, legal defense for the poor is wholly inadequate and a violation of 6th Amendment rights.

Strang talked about how much court appointed lawyers in his state, Wisconsin, make. “The current rate of pay for someone who takes a court appointment for an indigent client is $40 an hour for in-court time and $25 an hour for travel time. That has not changed since 1994 and it’s gone up only $5 an hour for in-court time since 1978.”

He also talked about imbalances in spending between the state and poor defendants. “The state will spend to investigate and collect evidence to prosecute a crime.”  A poor defendant will not have those resources. He elaborated:

“Most of those systems for providing indigent defense provide you a lawyer and not much else. The money allocated for private investigation in most places is very minimal. Money for expert witnesses, even less. Money allocated for independent testing of physical evidence less still.”

Strang’s remarks come amid heightened scrutiny of whether indigent defendants’ 6th Amendment right to adequate legal defense is being honored. The Atlantic reports “underfunding and understaffing in state public-defender systems weakens the quality of legal representation they can provide to their clients.”

States called out in the article for their sub-standard public defense system include:

Kentucky: “Virtually all of Kentucky’s public defenders exceeded the American Bar Association’s recommended caseload in 2015.”

Minnesota: “Minnesota’s public defenders took on almost double the ABA standard in 2010 – 170,000 cases for fewer than 400 lawyers – and spent only an average of 12 minutes on each case outside the courtroom.”

Louisiana: “8 out of 10 defendants cannot afford a lawyer, the system is on the verge of collapse. The state’s 2017 budget includes a 62% cut in state funding for the public-defender system, with 11 of the state’s 42 offices in danger of shutting down by October.”

Louisiana was also singled out by the NYT for its “free fall” public defender system. “Judges throughout the state have ordered private lawyers to represent people for free, prompting objection from members of the private bar. Some lawyers being conscripted are tax and real estate lawyers without any background in courtrooms or criminal law.”

The Supreme Court recently opined on this issue in Luis vs. United States. In a 5-3 decision, the Court ruled the government could not take funds deemed legitimate from defendants if the defendants’ intent was to use them to hire a lawyer of their choice. While this decision did not directly deal with funds for public defenders, in the course of proceedings, Justice Stephen Breyer raised the issue of what would happen if Luis could not afford to pay for a lawyer as the result of seized funds. In his amicus brief, he noted “only 27% of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards.”

In essence Breyer raised the question of whether using a court-appointed attorney “rendered less effective the basic right the 6th Amendment seeks to protect.”

I am not a Supreme Court Justice, but to extend this argument to its logical conclusion, a $40 an hour, tax attorney, appointed by the court, with no criminal defense experience, who spends 12 minutes on a case is not adequate representation for someone facing a criminal conviction. It is a no brainer.

If we are brazen enough as a society to lock people up for months, sometimes years, with this kind of defense and call it a day, we are twisted. This is not equal protection under the law for poor defendants.