Guilty Until Given Funding: The Cost of Underfunded Public Defense


Statue of justice. (Michal Kalasek/Shutterstock)

In 1994, a “tough on crime” former President Bill Clinton fought for the passage of a crime bill aimed at increasing the size and power of police in the United States. Clinton, and a bipartisan congress, successfully argued to increase funding for police forces, raise investment in prisons, and advance the police use of military technology. This bill laid the infrastructure for the U.S. to become the world’s most impacted prison system and caused the U.S. prison population to spike. Since 1980 the U.S. prison system has seen a 400 percent population increase, due in part to the way larger prisons and the greater capabilities of police forces enabled mass incarceration. This “tough on crime” stance has largely been erased by the Democratic Party since Clinton left office, but its legacy still runs deep in criminal justice institutions across the country. Police still have access to military technologies, incarceration rates are still staggeringly high, and, more recently, the public defense of those arrested has almost completely disappeared. The right to a public defender has been eroded, disproportionately impacting poor and minority populations seeking to exercise their right to a fair trial.

The landmark U.S. Supreme Court case Gideon v. Wainwright (1963) established that states must provide representation for poor defendants who cannot afford a private attorney. Funding for public defenders is now provided by counties and states, allowing public defenders to take on clients who cannot afford to pay for an attorney. While states have different criteria to determine who is and is not eligible for public defense, the concept of providing an attorney for those who cannot afford one is the same. Each state typically has a state public defender, who represents indigents in state appellate courts, and county public defenders.

Because states and counties fund public defenders, a lack of state and county funding obviously presents a problem. That is precisely what is happening now. The current lack of funding is leading to a failure of the system that was designed to protect the poor. A 2008 study revealed that only 2.5 percent of state and local government’s criminal justice budgets went to funding public defense. As a result, almost 73 percent of these public defenders have begun to exceed their maximum per year caseload.  The logic is simple: less funding means less public defenders, and the current staff have to take on more responsibility to defend those who need it. This shortage has drastic consequences. For example, in Cole County, Missouri, public defenders worked more than 220 percent above their recommended caseload limits. In Florida, the annual felony caseload per attorney was over 500 felonies and 2,225 misdemeanors in 2009. In Washington, public defenders were found to be working less than one hour per case. This overload of cases means multiple different things. If defenders are given less time on a case, they are less likely to get a deal for their clients and even less likely to be able to meet with their clients to get the right facts. As budgets become thinner and thinner, resources to properly help a case will be stretched thin as well and important evidence may be lost due to lack of resources dedicated to retrieving it. This lack of public defenders has also caused large court delays. Those who could be innocent are sitting in jail, waiting for trial, as their defenders barely have time to meet with them.

This reality is far from justice and represents a failure of a system that was supposed to protect the poor. The progressive values espoused by the Gideon v. Wainwright ruling are being failed today as state governments abandon their poorer constituents. This is particularly devastating to the mentally ill and minority communities that often find refuge in a policy that claims to provide everyone equal representation. As governments continue to ignore the equal promotion of justice to all, they will be chipping away at the foundation of our legal system and how it applies to those without financial resources. If this trend continues, the courts will become a place exclusively for those with wealth and anyone without a private attorney will be unable to have an adequate defense.

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