March 18, 2013, is the 50th anniversary of the famous Gideon v. Wainright case in which the Supreme Court ruled that the U.S. Constitution entitled criminally accused individuals to the assistance of an attorney. It is the case that required the creation of indigent defense systems to cover every criminal courtroom in the United States. But like many idealistic ideas that came out of the 1960's, reality has proven much less idealistic than imagined.
Jacqueline Dixon, President of the Tennessee Bar Association, writes this month that the indigent defense systems created by Gideon are woefully underfunded:
I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”
Here's my take: indigent defense will always be woefully underfunded. Like any government bureaucracy, its primary goal is to survive and grow. The more it grows, the more money it gets, the more power it has. A bureaucracy that claims to be fully funded doesn't get any more money in next year's budget. As Ms. Dixon points out:
Criminally accused individuals are not popular with anyone, and especially not with our legislature, so providing and increasing funding for their defense is a hard sell. There have been repeated petitions filed since 1994, and currently there is one pending before our Supreme Court that was filed by the Tennessee Association of Criminal Defense Lawyers (TACDL) in 2011, asking the court to increase the compensation rates [for attorneys] set forth in Rule 13. Of course, to do this, there would be a need for more funding from the legislature.
I would draw comparisons to the British NHS, their national healthcare system. A quick Google search for NHS and "overhaul" reveals a system that is constantly being "overhauled" and "redesigned" and "streamlined", but yet the promised benefits and efficiencies never emerge. It is a perpetually broken system that gets more taxpayer dollars every year while providing a declining standard of care. (Some say it is a glimpse into our own future, now that we, too, have nationalized our healthcare system.)
Government bureaucracies have no incentive to be efficient. Their incentive is to always appear just on the verge of bankruptcy so that the taxpayers can be persuaded to give a little more than last year, which will still be a little less than next. Bureaucracies serve not the people who need them but the government that funds them. So long as they can get more funding from year-to-year, the level of service they provide is irrelevant. In fact, the lower the level of service they provide, the more money they will demand in order to "fix" the problem.
But this isn't to say that our indigent defense system is bleeding taxpayers dry. It's not. As Dixon points out:
The hourly compensation rates have not changed since 1994. Payments to attorneys in all matters except death penalty cases are limited to $40 an hour for out-of-court work and $50 per hour for in-court work and are capped at either $1,000, $2,000, or $3,000, depending on the severity of the charges against the accused. The $3,000 maximum may be waived in certain first-degree murder cases. The caps often mean that an appointed attorney is paid a maximum of $3,000 for days of preparation and hearings — even a jury trial!
More money won't solve the problem, though. Like the NHS, indigent defense is plagued by individuals who shouldn't really qualify for the system. When Earl Gideon was arrested, tried, and convicted without an attorney, he was a 51-year-old homeless drifter. He had no assets, no home, no government aid, and his body had seen better days. Today, "indigent" defendants often are healthy young people, under 30 years old, who receive free housing, free food, free healthcare, free cellular telephones and income tax credits of several thousand dollars annually. Compared to Earl Gideon, today's "indigent" defendants live like kings.
But in determining who in "indigent," courts often fail to take these public benefits into account. They don't count the free housing, food, healthcare and telephone as "income". (Nevermind that if someone gave you or I a free house tomorrow, we would have to report it as income to the IRS.) They confuse ability to pay with desire to pay. I can't accept that a healthy 25-year-old man with all the necessities of life provided to him for free (either by government or parents) is still somehow unable to secure the minimum-wage employment that he would need in order to pay for his own defense. He may not want to, but he is able to. He would get much more attentive representation by doing so, and public defenders would have more time to spend on truly needy clients. It would be a win-win for everyone.
To reform indigent defense, we don't just need more taxpayer dollars. We just need higher and more consistent standards to determine who qualifies for those dollars. Until then, we are going to have overworked public defenders splitting their limited time between the truly needy and those who could pay their own way, but aren't. Why would anyone place their own freedom or a loved one's freedom in the hands of a system that can spend so little time on any one case is beyond me.
The full TBJ article is here.