The practice of appointing any attorney at the state bar as a public defender

Rachel Linton SFS 2019

The Bill of Rights gives every American accused of a crime “the right to an attorney.” What that means today, as a result of 1963 Supreme Court decision Gideon v. Wainwright, is that anyone accused of a crime who cannot afford an attorney can have one appointed to them by the court.

In many jurisdictions, however, that “can” is called into question—because there are simply too many cases and not enough attorneys. As far back as 2007, 73% of county public defenders offices exceeded the maximum recommended number of cases. In 2013, then-Attorney General Eric Holder admitted that the public defense system was in “a state of crisis.”[1]

What does this mean for the accused?

In New Orleans, that means that when a case is called, a lawyer from the public defender’s office simply reports, “Your honor, we do not have a lawyer for this person at this time.” Last January, the New Orleans Public Defender’s office had such a large backlog that they stopped taking cases.[2]

This left many poor individuals without attorneys, a situation for which the state of Louisiana does have a solution. Unfortunately, this solution can cause as many problems as it solves. Any attorney at the state bar in Louisiana can be assigned a pro bono case of public defense. This can occur regardless of whether they’re still a practicing attorney—or whether they’ve ever practiced criminal law. In one case covered by NPR’s This American Life, an accident and injury lawyer who hadn’t practiced criminal law in thirty years was assigned a criminal case.[3]

Louisiana is far from the only state struggling to meet the demands for public defense. In 2014, a study determined that Missouri needed an additional 270 public defenders to adequately serve the needs of the population. By late 2016, every public defender in Missouri had more than a hundred cases at any time—and sometimes more than 200. In August of 2016, public defender Michael Barrett raised the profile of the issue by attempting to assign a case to Missouri Governor Jay Nixon. Nixon had previously vetoed caseload caps and blocked funding for public defense.[4]

By September of last year, the American Civil Liberties Union (ACLU) had filed lawsuits in Louisiana, Michigan, California, Washington, and Montana alleging that the poor were being offered inadequate legal defense.[5] With attorneys in Washington state spending less than an hour per case due to their workload, “inadequate” seems to be entirely too mild a term.1

Professor Ellen Yaroshefsky said the New Orleans criminal justice system was a “processing system” rather than a “justice system” as a result of the public defense crisis2—and New Orleans is far from alone. Without dramatic overhauls, “criminal justice” will remain a misnomer in many states—especially for the poor.

[1] Van Brunt, Alexa. “Poor people rely on public defenders who are too overworked to defend them.” The Guardian, 17 June 2015.

[2] Bunton, Derwyn. “When the Public Defender Says, ‘I Can’t Help’.” New York Times, 19 Feb. 2016.

[3] Zax, David. “This American Life.” 595: Deep End of the Pool. If You Cannot Afford an Attorney, Some Random Dude Will Be Appointed to You. 26 Aug. 2016. Web.   8 March 2017.

[4] Domonoske, Camila. “Overworked And Underfunded, Mo. Public Defender Office Assigns Case — To The Governor.” NPR, 4 Aug. 2016.

[5] Greenblatt, Alan. “Overworked and Underfunded, Public Defenders See Some Light.” Governing, 20 Sep. 2016.

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