How being poor wrecks your chances of good legal representation

Washington D.C., May 12, 2016 / 15:21 pm

It's not a social justice issue that tops most Catholic's priorities, but it needs to be, legal experts are saying. The problem? How much money you have – or don't – makes every difference in how you're represented in court.

In January, the American Civil Liberties Union sued Louisiana's Orleans Parish public defender's office for putting clients, some of who were in jail, on a waiting list for legal counsel.

The office had to stop adding new clients because the public defenders were overworked and budget cuts to the parish prevented new hires.

Lauren Anderson, an attorney with the office who's worked in Orleans since 2013, was quite candid about the dire situation in her affidavit.

"I do not believe I am providing effective representation to the majority of my clients," she said. "Instead, I feel like a case processor, not an attorney."

"I spend my days pleading people guilty in the blind, not challenging the state's evidence in court or investigating the claims made by the police."

Between Jan. 1 and Nov. 20 of 2015, Anderson said she "handled 671 misdemeanor, 157 felonies, and 182 revocations." In that time she also "received 431 new misdemeanors, 155 new felonies, and 171 new revocation cases."

Her "current caseload" at that time she submitted her report was over 120 felony cases, 78 misdemeanors, and 21 revocations.

Simply put, she was overbooked and had little to no time to properly treat her clients and argue their cases in court.

Anderson is not alone. Her colleagues made the same claims – they were handling hundreds of cases, some of their defendants were in jail and speaking to them was a time-consuming process, some were mentally ill and difficult to communicate with, and they didn't have the time or resources to properly investigate the cases.

In short, the system was broken.

Three other Louisiana parishes had "waiting lists" of defendants who need legal counsel, according to the ACLU. And it's a national problem, with similar cases happening across the country, thus proving disastrous for people, many of who are poor, who stand accused of a crime and need legal counsel.

"It's the insurmountable caseloads," Colette Tvedt, director of public defense training and reform at the National Association of Criminal Defense Lawyers, told CNA. "There's just been budget cuts to public defense nationwide."

In 1963 the Supreme Court ruled in Gideon v. Wainwright that, under the Sixth Amendment right to legal counsel, in serious criminal cases the state must provide attorneys for defendants who cannot afford one.

The Court stated that "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

Yet that promise of legal counsel for everyone is still largely unfulfilled today, legal experts say. In a 2013 speech on the 50th anniversary of the Gideon decision, Attorney General Eric Holder stated that "America's indigent defense systems exist in a state of crisis."

"It's really more of a scenario where states have never honored the Sixth Amendment right to counsel in a way that the Supreme Court envisioned," Cara Drinan, a law professor at the Catholic University of America's Columbus School of Law, told CNA in an interview.

When poor people are accused of a crime and are unable to secure adequate legal assistance, it is absolutely a social justice issue that Catholics should be concerned about, Mary Leary, another law professor at Catholic University, said.

"This speaks to the Catholic social justice issues of dignity and the common good," she told CNA. "And neither of those are advanced when we have ill-funded public defenders, or public defenders working under impossible conditions."

The number of criminals in the last 40 years has multiplied. In 1963 there were around 217,000 incarcerated in the U.S., and that number skyrocketed to around 2.3 million in 2013.

With more criminal cases, many of them involving poor defendants, came increased workloads for public defenders and other attorneys appointed by states for public defense. Attorneys are so busy they often have just a few minutes to meet with their client before trial, and usually counsel them to accept a plea deal offered by the state.

The American Bar Association, in its 2011 report "Securing Reasonable Caseloads: Ethics and Law in Public Defense," stated that "there is abundant evidence that those who furnish public defense services across the country have far too many cases, and this reality impacts the quality of their representation, often severely eroding the Sixth Amendment's guarantee of the right to counsel."

The ACLU has sued various districts around the country for failing to provide adequate public defense. In each case, the caseloads of attorneys were extremely high.

For instance, the ACLU sued the city of Mount Vernon in Washington state and won in district court in 2013; there, "each closed approximately 1,000 public defense cases per year in 2009, 2010, and 2011 and often spent less than an hour on each case," according to the court's ruling. Investigations, legal analysis, and confidential conversations with clients were practically non-existent, as well as any "adversarial testing of the government's case."

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One of the attorneys "essentially said that trials were unnecessary because 'we all knew where we were going,'" the decision said.

And many of these criminal cases that end in guilty pleas may not just be "petty" charges.

Anderson, in her affidavit, stated that she is a "Level 3" attorney, "meaning the majority of my new clients are charged with burglary, gun possession, aggravated battery, or drug distribution." The gravity of their cases, and the fact that some are alleged repeat offenders, means "the vast majority of my clients are facing decades in prison if found guilty at trial," she said.

Also, states as a whole spend far more on prosecution than on public defenders. States spent a total of $5.8 billion on prosecutors' office budgets in 2007 compared to just $2.3 billion on public defenders' budgets, according to a survey of 49 states by the Bureau of Justice Statistics.

There is "enormous disparity in terms of resources," Professor Drinan said, noting that "across the board, prosecutors tend to have more resources than defenders."

A major federal grant program by the Department of Justice – the Edward Byrne Memorial Justice Assistance Grant Program – allocated over 60 percent of the grant to law enforcement in 2012, the Brennan Center reported. In the portion of the remaining funds that went to prosecutors and public defenders, prosecutors got over seven times the amount that public defenders received in 2010.  

Leary acknowledged there may be an overall disparity in funding but cautioned against the notion that all prosecutorial offices have access to the resources they need. There have been rape cases where a prosecutors' office in a big city couldn't perform vital DNA testing because the state wouldn't pay for it, she noted. "Those are real pressures that, to this day, exist," she said.

Public defender offices may face funding shortfalls because some states have transferred the budgets to individual counties who are unable to generate the revenue.

Derwyn Bunton, chief district defender for Orleans Public Defenders, reported over $300,000 in projected revenue shortfall for the office in FY 2016. Additionally, the state was cutting over $700,000 of funds for the office, and over half the office's revenue relied on "traffic tickets and fees imposed on defendants." The office's projected costs outpaced their projected budget in FY 2016 by almost a million dollars, he claimed.

In some states and localities, prosecutors already have law enforcement and state crime laboratories at their disposal in cases, although this is not the case everywhere Leary noted. Only nine percent of employees in state prosecutors' offices are investigators, according to 2007 numbers by the Bureau of Justice Statistics.

Prosecutors do have excessive caseloads too, Drinan said. "One of the key differences, though, is that the prosecutors have the power to make those cases go away," she added.

Public defender offices may not afford or have time for investigations, expert witnesses and the help of social workers to determine the mental state of their clients – basic necessities of forming a sound defense.

Anderson, in her affidavit, said she counsels most of her clients to plead guilty "without any investigation being done in the case." In a case going to trial, she most likely does not start working on it until the weekend before, doesn't see the police report until the trial, and doesn't visit the crime scene.

And the public defenders themselves are arguably not well compensated for their work. Compensation limits per case are set by the state with a maximum amount for each case, meaning that if an attorney reaches that amount of compensation his or her hourly salary begins decreasing each extra hour they spend on a case.

In the 30 states that have set a compensation limit, the maximum is 65 dollars an hour with some states paying four dollars an hour, noted a 2013 report "Gideon at 50" by the National Association of Criminal Defense Lawyers. Some states have not increased their hourly maximums since the early 1990s, or 1986 in Alaska's case.

And overhead costs like for malpractice insurance mean that in some cases, public attorneys are actually losing money on a certain case.

"The dramatic underfunding and lack of oversight for our public defender services has placed people in a very, very precarious position when they find themselves charged with a crime," Tvedt stated to CNA.

When a defendant doesn't have legal counsel, he or she can accept a plea deal that seems amenable on the surface but carries hidden consequences. Jail time, even just a few days, can impact major things like one's employment and housing.

For a poor person without a lawyer or with an overworked public defender, pleading guilty to even a "minor infraction" can have serious "collateral consequences," Tvedt said. For example, if they plead guilty to driving with a suspended license and then drive to work or take their kids to school and are caught, the second offence can carry much higher fines. If they can't pay those fines, they could serve jail time.

"I have spent the last two years in court rooms all over the country doing court watching, and I have seen so many peoples' lives destroyed in 30 seconds by pleading guilty without a lawyer next to them," Tvedt said, or with a lawyer that's "too busy" to properly handle their client's case.

That was the exact case in Ferguson, Mo., where poor defendants without lawyers pleaded guilty to minor infractions that were issued at a very high rate in the local courts, she said.

"Waivers" of right to legal counsel can also be abused by judges who don't properly inform defendants of that right, or of the risks of forgoing counsel. Defendants can be poorly educated and completely ignorant of the justice system, yet a judge may simply ask them if they want to waive counsel without warning them of the significant risks that poses to their case, one report on misdemeanor courts by the NACJL said.

In one instance in Maricopa County, Ariz., a judge told defendants who were being charged with reckless driving that "I want you to waive your right to an attorney. You have a right to have an attorney, but I'm not going to give you the public defender. You would have to go and hire one and I don't think you're going to do that. I think you and I are going to talk about this right here, right now, right?"

In other circumstances, courts will first hear cases of those who have hired lawyers before they hear the cases of those with public defendants, Leary said. That means that when the court's day is done there may be people who waited all day for their case to be heard but have to return the next day, or the day after that. For someone working multiple jobs with no vacation days, they might not be able to take extra days off or pay for child care to keep coming to court.

"In terms of the common good, then you might have a situation where the offender is, in fact, guilty, but is not held accountable, not because he was found innocent…but because the system was able to be worked by a defendant with money," Leary said. "It's a real problem from a public safety standpoint."

"The problem with our system is that it hurts the poor," she continued.

Ultimately, the whole legal system needs to be funded, not just public defense, she insisted, "so that everybody has their dignity – criminal defendants, witnesses, and victims. That everybody has their dignity."

"And only through that can we really get at a system that achieves justice."

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