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September 10, 2010

"Budget Woes Hit Defense Lawyers for the Indigent"

The title of this post is the headline of this article in today's New York Times.  Here are a few excerpts:

Some public defenders in Missouri say the stressed state budget is interfering with their ability to provide poor defendants with their constitutional right to a lawyer. They say they are so overworked and underfinanced that they have begun trying to reject new cases assigned to them late in the month, when, they say, their workloads are already beyond capacity.

Concerns about a deteriorating, overwhelmed public defender system in this country have been around for decades, but they have ballooned recently as state budgets shrink and more defendants qualify for free legal counsel.

“This has been a problem in good economic times, and now it’s only worse,” said Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association. “What you have is a situation where the eligible pool of clients is increasing, crime rates are potentially increasing, while the resources often for public defenders are going down.”

Missouri’s per capita spending on public defense ranks 49th in the nation (only Mississippi spends less), Ms. Wallace’s group says.  State officials say the defenders system, with its 570 employees, is expected to receive more than $34 million this year. 

The state public defender’s office says a true solution would require 125 more lawyers, 90 more secretaries, 109 more investigators, 130 more legal assistants and more space — all of which would cost about $21 million a year — a seemingly impossible suggestion, given the fiscal climate.

In the meantime, they say, fiscal constraints are colliding with the requirement set forth in a 1963 Supreme Court decision, Gideon v. Wainwright, that poor people accused of serious crimes be provided with lawyers paid for by the government....

To some, the signs of stress on the public defender system here have become overwhelming, even frightening: almost all the public defenders’ 35 trial division offices lately carried caseloads that would require more than the total number of staff hours available in a month — in some cases, more than two times the hours available, said Cat Kelly, deputy director for the Missouri State Public Defender System. “Missouri’s public defender system has reached a point where what it provides is often nothing more than the illusion of a lawyer,” an outside report asked for by the Missouri Bar concluded last year.

Yet some county prosecutors here are deeply skeptical of the defenders’ complaints. With the state facing $550 million less in general fund revenues than a year ago, they say, defenders are no more burdened than the next department.

“They say this every year,” said Ron Cleek, the prosecuting attorney in Christian County, which includes Ozark, adding that he wondered whether some at the defenders offices might “want to think about what time they come in and when they go home.” “We all work hard,” Mr. Cleek said. “They just need to suck it up and get out there and get it done.”...

Around the country, the indigent are defended by a hodgepodge of systems and financing sources. In some places, private lawyers are appointed by judges; elsewhere, statewide public defender networks (like Missouri’s) have been created. Other jurisdictions use some combination of methods.

The public defenders in Missouri and elsewhere all ultimately pose a larger question: How far can defenders be stretched before they no longer provide poor people with the legal help ensured by Gideon?

Especially with so many recent legal graduates looking for work these days, I have long thought that the federal government might usefully step in to situations like this one in Missouri in order to provide a kind of "Peace Corps for New Lawyers" or a "Lawyer for America" program that matches new law school graduates with short-term jobs in those criminal justice systems nationwide that are struggling most to meet the constitutional requirements of Gideon.

September 10, 2010 at 06:48 AM | Permalink

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"I have long thought that the federal government might usefully step in to situations like this one in Missouri in order to provide a kind of "Peace Corps for New Lawyers" or a "Lawyer for America" program that matches new law school graduates with short-term jobs in those criminal justice systems nationwide that are struggling most to meet the constitutional requirements of Gideon."

I'm not sure about the federal involvement -- the feds are already involved in too much and are spending too much -- but I agree with the basic idea.

It's past time for the legal profession, as a profession, to stop complaining and start working.

Posted by: Bill Otis | Sep 10, 2010 8:35:25 AM

New Jersey traffic court leads and shows the way. Neither prosecutor nor defense attorney know anything about the defendant, the charge, the facts, and care less. Everyone pleads to unsafe driving, pays $400, a higher fine than warranted by the original charge, but with no points. The judge clears each case in two minutes, and everyone leaves happy.

Instead of custom, hand work, mass produce the law.

Posted by: Supremacy Claus | Sep 10, 2010 8:47:12 AM

I am sorry, but Gideon was guilty as sin. This is not taught in law school, the reality of Gideon.

This case produced horrible outcomes. Two thousand criminals had their charges dismissed, but not Gideon. He continued to rot in jail. Imagine loosing 2000 criminals in a day. The second trial did produce a false result, and did not do Gideon any favor. He was freed, but went on to drink and beat the wife full time, with his new freedom, instead of making legal history writing on paper bags or toilet paper or whatever he filed his brief with.

Posted by: Supremacy Claus | Sep 10, 2010 8:53:14 AM

"This case produced horrible outcomes." Are you serious? Have you read the Bill of Rights?

Posted by: anon | Sep 10, 2010 9:31:04 AM

"I have long thought that the federal government might usefully step in to situations like this one in Missouri in order to provide a kind of "Peace Corps for New Lawyers" or a "Lawyer for America" program that matches new law school graduates with short-term jobs in those criminal justice systems nationwide that are struggling most to meet the constitutional requirements of Gideon."

"I'm not sure about the federal involvement -- the feds are already involved in too much and are spending too much -- but I agree with the basic idea."

"It's past time for the legal profession, as a profession, to stop complaining and start working."

============

Agreed. I'll also take law schools' cutting the requirements to 2 instead of 3 years, or, for every pro bono case a new grad takes, the former school will make the alum's monthly loan payment. In fact, this could be a form of a voucher system advocated by the professors in the Cato Report -- but without government influence.

It's not just a money problem. There are plenty of new grads itching to get in the courtroom and use what they've learned -- but some states, who control which attorneys get assigned cases (as pointed out at least indirectly in the Cato Report from 9/1/10) set the qualification in such a way that the only efficient way to qualify is to have worked as an asst. prosecutor or defender -- offices that limit their hiring (NY comes to mind).

The money is important -- but so is the opportunity. And the source doesn't have to be the government, it certainly can be in the form of fellowships from firms, foundations, or, Uncle Bob.


Posted by: = | Sep 10, 2010 10:28:52 AM

The main problem I see with federal involvement here is that it creates a major incentive for a race to the bottom (in an environment that already struggles to meet its mandate no less). And then the recent grads run out.

As for Gideon, if it is to be good law I see no principled basic for limiting it to the indigent. Especially when you see just how impoverished that bar has been set.

Posted by: Soronel HaetirH | Sep 10, 2010 12:17:09 PM

The question is: how much is the same state spending to prosecute these cases? Adding together the costs of police, prosecutors, and other staff, I guarantee you that the prosecution side gets more than the defense. That's not even taking into account things like expert testimony -- that's often free to the prosecution, since cops and lab techs get to be designated as experts all the time, but it costs the defense side out of pocket.

And for those of you saying that recent grads with no experience are the answer, ask yourselves... if you son or daughter were charged with a serious crime, would you want a 25-year old kid with no life experience or courtroom experience to be solely and personally responsible for the outcome of that case?

Posted by: sal | Sep 10, 2010 2:28:03 PM

SC, at his second trial with the lawyer that he didn't have at his first, Gideon was acquitted. Your ignorance is matched only by your incoherent screed.

Posted by: anon1 | Sep 10, 2010 3:21:01 PM

sal --

Lawyers flatter themselves relentlessly, thinking that they are the key to the outcome of the case.

In some few cases, that's true. In the great run of them, it isn't. The lawyer doesn't tell the tale. The evidence does.

Posted by: Bill Otis | Sep 10, 2010 3:25:59 PM

There's plenty of disorderly conduct cases around; and there's plenty no experience kids fighting for some parent's son or daughter on serious charges -- they are in public defender offices. And some of those no-experience kids are getting acquittals.

Posted by: = | Sep 10, 2010 4:42:38 PM

His pro se defense in the first trial was competent, and the verdict was self-evident.

After the break into a cigarette machine, he has $23 in quarters in his pocket. He calls a cab from outside the robbed bar. No getting away on foot, he goes only in comfort and style. Now who has $23 in quarters immediately after a break into a cigarette machine?

On the second go around, he wisely rejects the top ACLU litigator. He selects a slick private attorney specializing in getting guilty people off scot free, like a Dream Team. It is this professional liberator of the guilty that sets him free. This freedom leads to a downhill course of alcoholism and wife beating that eventually does him in.

The Supreme Court chose this terrible defendant to provide a pretext to generate massive lawyer jobs. He could have been Jack the Ripper, the decision would have been the same.

Posted by: Supremacy Claus | Sep 10, 2010 7:43:44 PM

Bill -- Over 90% of criminal cases are settled by way of negotiated guilty plea in this country. In some systems, that number is more like 98%. In most of that 'great run' of cases, the attorney's preparation, negotiation, investigation, and efforts at sentencing mitigation absolutely affect the outcome. But by all means, should you ever be charged with a serious criminal offense, I encourage you to proceed pro se. I expect at the conclusion of the proceedings, you might feel differently about the value of being represented by qualified counsel.

Posted by: sal | Sep 11, 2010 2:35:38 PM

sal --

As I say, the evidence tells the tale. Of course it's possible you have more courtroom experience than I do. Do you?

"But by all means, should you ever be charged with a serious criminal offense, I encourage you to proceed pro se."

I love it when you Lefties fantasize that I'm going to "be charged with a serious criminal offense." Newsflash: Like most normal people, I actually believe in obeying the rules. Ain't that somethin??!! And because I obey them, I have had no problems arise in the three FBI background checks that were done when I held various posts in the federal government.

"I expect at the conclusion of the proceedings, you might feel differently about the value of being represented by qualified counsel."

Indulging your fantasy for the moment, I don't know exactly how I'd feel after tussling with the proseutor, who might well turn out to have been to have been my pupil. I hope that I'd try to be pleasant and understanding

Posted by: Bill Otis | Sep 11, 2010 3:24:38 PM

Wasn't Gideon acquitted on (counseled) retrial? I think he was.

Posted by: Anon | Sep 13, 2010 12:04:49 PM

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