Serious problems persist in indigent legal defense

Published on NewsOK Modified: March 18, 2013 at 2:54 am •  Published: March 18, 2013

Kagan was part of the 5-4 decision in the defendant's favor.

In some places, lawyers are overwhelmed by their caseloads. A public defender in Indianapolis lasted less than a year in his job after being asked to represent more than 300 defendants at a time, said Norman Lefstein, former dean of the Indiana University Robert H. McKinney School of Law.

"A lawyer with an S on his chest for Superman couldn't represent these people. He simply couldn't do it. There are only so many hours in a day. But it's not just caseload. It's the other support services that go along with it," including investigators, said Lefstein, who has studied problems in indigent defense for decades.

In Luzerne County, in northeastern Pennsylvania, the chief public defender told the local court he would stop accepting certain cases because his office had too many clients, too few lawyers and not enough money. A judge's ruling in June acknowledged the lack of money and manpower, but forbade the defender's office to turn away cases. The judge's ruling was encouraging, Lefstein said, but on his last visit to Wilkes-Barre in January he found "the caseloads are worse than ever."

Eighteen states, including California, Illinois, New York and Pennsylvania, leave the funding of indigent defense entirely to their counties, said Rhoda Billings, a former chief justice of the North Carolina Supreme Court who has looked at the issue for the American Bar Association. Those states "have a significant disparity in the appointment of counsel" from one county to the next, Billings said.

Public defenders in those counties often report to elected officials or their appointees, rather than independent boards that are insulated from politics. But even programs run at the statewide level are not free of political influence, Billings said, citing the case of a New Mexico public defender fired by the governor.

The lack of independence raises questions about whether decisions are being made in the best interests of clients, Rapping said.

The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.

"Arguing for more money to defend criminals is not the easiest way to win a close election," said former Vice President Walter Mondale. As Minnesota's attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states' responsibilities to poor defendants.

Heralded for its powerful statement about the right to a lawyer, the Gideon decision also left states on their own to pay for the provision of counsel, Lefstein said. "It came as an unfunded mandate to 50 state governments and that problem endures," he said, noting that in England, Parliament provides money to local governments to pay for legal representation of the poor.

"The federal government does next to nothing to support indigent defense in the United States," Lefstein said.

Since becoming attorney general more than four years ago, Holder has shown a commitment to the issue. He established an "Access to Justice" program and made Harvard Law School professor Laurence Tribe its initial director. The department also has sent a few million dollars to defense programs across the country. He announced nearly $2 million in new grants on Friday.

The right announced by the Supreme Court 50 years ago only covers criminal cases. It has never been extended to civil matters, although as Mondale pointed out, they can lead to people losing their homes, their families, being confined in a mental institution or being thrown out of the country.

To people in those situations, he said, the distinction between criminal and civil law "doesn't make much of a difference."