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September 10, 2019

"A Fair Fight: Achieving Indigent Defense Resource Parity"

DefenderParityCoverThe title of this post is the title of this notable new report authored by Bryan Furst, who serves as counsel and the George A. Katz Fellow with the Brennan Center's Justice Program. Here are excerpts from the report's start:

Many of the issues that affect our criminal justice system today — overly long sentences, racial bias, wrongful convictions — are exacerbated by overwhelmed indigent defense systems.  In this moment of bipartisan support for reform, creating resource parity between prosecutors and indigent defenders could help achieve transformative change and lend needed credibility to our criminal justice system....

A functioning adversarial legal system requires two adequately resourced opposing sides.  But American prosecutors, while sometimes under-resourced themselves, are the most powerful actors in the U.S. legal system.  In addition to better funding, there are numerous structural advantages a prosecutor holds that worsen the resource disparity.  For example, harsh mandatory minimums and widespread pretrial incarceration create conditions in which people have essentially no choice but to accept whatever plea deal the prosecutor offers.

Historically, improving the resource disparity for defenders has been politically difficult because of the cost and the fear of looking “soft on crime.”  This might not be as true today, when 71 percent of voters think it is important to reduce the prison population and 66 percent support the use of government tax dollars to provide indigent defense.

In addition, the fiscal costs of indigent defense reform are not nearly as high when one accounts for the savings it can bring.  Issues exacerbated by defender resource disparity — pretrial incarceration, overly long sentences, wrongful convictions — are extremely expensive.  The Prison Policy Initiative estimates that the United States spends $80.7 billion on corrections each year, while pretrial detention alone costs $13.6 billion.  From 1991 to 2016, Texas paid out over $93 million to wrongfully convicted people.

Providing better indigent defense does not always mean spending more money.  State indigent defense systems are often structured in extremely inefficient ways that cost states more than necessary and lead to worse outcomes for people accused of crimes.  Restructuring for those jurisdictions may require an up-front investment but can lead to savings in the long term.

At the heart of defender resource disparity is the chronic underfunding of indigent defense — a phenomenon that is widespread and well-documented.  But fixing the problem will require more than simply increasing funding, and the question demands thinking broadly about the many issues that drive it.  This report identifies five key challenges that contribute to defender resource disparity:

  • Improperly structured indigent defense systems
  • Unsustainable workloads
  • Defender-prosecutor salary disparity
  • Insufficient support staff
  • Disparate federal funding as compared to law enforcement

Many of the solutions presented in this analysis will improve resource parity, requiring increased up-front spending.  Some will produce savings in the long term through cost sharing between indigent defense offices or reduced levels of incarceration, while others, such as mandating open discovery, will cost almost nothing to implement.

This analysis identifies various characteristics of the justice systems that contribute to defender resource disparity and presents solutions to move toward parity.  It seeks to build upon and elevate the work of many others in the multi-decade effort to realize the right to counsel in this country — one of many necessary reforms required to dismantle the systems of mass incarceration.

September 10, 2019 at 12:23 PM | Permalink


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