For the third week of our educational criminal justice series, we consider an often-overlooked figure who plays a key role for 4 out of 5 individuals in the criminal justice system: the public defender.

Our modern public defender systems find their grounding in the principle that a fair trial is almost impossible without the assistance of an effective lawyer, but it wasn’t until the historic Gideon v. Wainwright case in 1963 that the Supreme Court ruled on the issue of whether an attorney was essential to securing a fair trial under the 6th Amendment. Other cases would develop this principle further, setting requirements for what types of trials require the defendant to have access to a lawyer, at what points in a case counsel must be offered, and what constitutes an “effective” attorney.

Unfortunately, most systems today struggle and oftentimes fail to secure the constitutional right for defendants to have access to an effective attorney. The federal government provides attorneys for those accused of federal offenses, but the majority of cases are tried at the state level. States are charged to implement, oversee, and fund a system for public defense. Some rely on public defense offices that mirror the office of public prosecutors; others use contracted attorneys, usually with a capped hourly rate or a fixed number of cases they agree to work on. Most states include funding for public defenders in their yearly budget appropriations, but some, like Louisiana, rely largely on locally-generated revenue.

In this patchwork system, common themes emerge: chronic underfunding, erratic revenue sources, insufficient personnel, and ethically-questionable practices. From the most recent available data in 2012, we see that out of the almost $200 billion state and local governments around the U.S. spent on criminal justice in a year, only about $2.3 billion was allocated for public defenders. Public defenders generally make less money than similarly-experienced public prosecutors, and their offices are much more likely to be underfunded. A 2007 Bureau of Justice Statistics report (again, the most recent data available) states that three out of four public defender offices exceed the maximum recommended cases per attorney. This issue persists today. In one Louisiana district, for example, 1 lawyer was employed to handle over 900 cases. Additionally, many systems are set up to reward the number of cases processed instead of the quality of service offered.

These funding models result in many defendants receiving only minutes of legal counsel, a particularly concerning trend given the prevalence of plea bargains in our justice system. Enormous public defender caseloads may also force defendants who cannot afford bail to wait in jail for weeks or even months to have access to a lawyer—all while they are “innocent until proven guilty.” Better funded systems with manageable caseloads would, at the very least, allow public defenders to more thoroughly review their clients’ cases, would reduce the pressure on accused individuals to accept plea-bargains without truly understanding their options, and would shorten the time defendants must wait to speak with a lawyer.

Public defense is a cornerstone of the U.S. criminal justice system, designed to ensure a fair trial for all people, not only those who can afford to hire lawyers. It is also sensible policy, ensuring that innocent people are not in prison and that prisons are not overcrowded with people who did not commit crimes. For some crimes, an innocent person being pressured into a plea deal may mean that the perpetrator of the crime remains in the community. As a result, the failures in the public defender system can pose a threat to public safety. It is impossible to know how many people are wrongfully convicted in the U.S., but the consequences of a wrongful conviction can be devastating. Individuals can spend years in prison, permanently damage relationships with friends and family, and lose jobs or scholarship opportunities.

The diversity of public defense systems across all the states makes it difficult to find easy answers to the systems’ failings. However, since this system is so decentralized, there is also ample opportunity for us to advocate for change in our local communities. Urge your state and local officials to support additional funding for public defense attorneys. Find out how your funding for public defenders works: does it provide incentives to process plea deals or to fight for the innocent? Advocate for alternatives to jail time and for a focus on rehabilitation and restorative justice. Let us all uphold our baptismal vows to strive for justice and respect the dignity of every human being.

Additional Resources

• A Fair Fight: Achieving Indigent Defense Resource Parity (Brennan Center for Justice)
• Just Mercy by Bryan Stevenson
• Right to Counsel Information by State

General Convention Resolutions*

• 2015-A011: Urge Advocacy for Policy Changes to End Mass Incarceration Practices
• 2003-A126: Promote Juvenile Justice Reform

*As public defenders are so often missed by general reports examining the criminal justice system, so too are direct references to them missing in the policies and resolutions of General Convention.