June Hardwick has been brainstorming with a black marker on poster-size papers covering her office wall. The Jackson, Mississippi, assistant public defender is reviewing the facts -- and possible defense arguments -- in a client's statutory rape case. "No rape kit," reads a bullet point. "No panties," reads another. She has stacked and sorted her indicted cases on the floor beneath the papers; each folder represents a person too poor to hire a private attorney. On top of the last pile sits a note on which Hardwick has scrawled "need to visit."
That Hardwick plans to see clients in jail shouldn't be remarkable. But court-appointed lawyers who don't meet -- or even talk to -- clients until the eve of trial are one symptom of a crumbling public-defense system that critics say fails clients, communities, taxpayers, and the Constitution. In the worst instances of substandard legal defense, the innocent lose liberty. More commonly, a poor person serves extra time when robust counsel might have secured a shorter sentence, probation, or stint in a drug-rehabilitation program.
National numbers on indigent defense are scarce, but it's clear that the vast majority of defendants qualify for court-appointed counsel. Public-defender offices across the U.S. spent $2.3 billion on more than 5 million cases in 2007 -- and those figures don't include expenditures in approximately 30 percent of counties, which use a contract or assigned-counsel system instead of staff attorneys. Of state and county public-defense systems recently surveyed by the Bureau of Justice, more than 70 percent reported caseloads that exceed national professional guidelines, a burden which can clog dockets and crowd jails before a verdict ever arrives.
After sentencing, there's the social cost of extra prison time and the actual cost: Incarcerating an inmate for a year averaged $22,650 in 2001, the latest year for which national data is available. More recent tallies, such as those from California, show skyrocketing costs. The Golden State spends nearly $50,000 a year to imprison an individual. Meanwhile, funding for indigent defense, which might minimize the prison population, is wildly uneven. According to a 2008 report from the National Legal Aid & Defender Association, per-capita spending on public defense ranges from $40.95 in Alaska to $4.15 in Mississippi, the lowest in the country.
Hardwick's office in Mississippi, like many across the country, has been further hamstrung by the recession: The Hinds County Board of Supervisors instituted furloughs one day a month for county employees in April. Despite this setback, Hardwick's ability to represent clients has improved thanks to the Southern Public Defender Training Center. The three-year classroom and mentorship program recruits and equips bright young lawyers to serve a corner of the justice system that desperately needs them. Lawyers attend two weeks of classes with veteran public defenders at Samford University's Cumberland School of Law in Birmingham, Alabama. They reconvene every six months to discuss challenges, consulting with mentors in the interim. The center has trained 95 attorneys since 2007. The neediest offices pay as little as $250 to enroll a public defender.
The center's founder, Atlanta lawyer Jonathan Rapping, says the program not only provides defense-specific education that's too expensive for many offices; it promotes professional pride and a culture of thorough, vigorous representation. "We need to have a community of public defenders who care as much about their clients as O.J. Simpson's lawyers cared about him," he says.
For Hardwick, who is in her second year of the program, the training has provided skills and experience that law school did not. She is learning strategies for persuading juries and communicating with clients. She has been encouraged to conduct her own investigations -- a task she admits she hadn't been doing well. She has learned to excel in direct and cross-examinations and to break bad habits, like waiving preliminary hearings. "It's our first stab at discovery," Hardwick says. "Now I know how to milk it. I know how to ask all the questions that I need to help my client."
This year, the Department of Justice awarded the Southern Public Defender Training Center a $700,000 grant to expand its work. The award is one of several reform-minded public-defense initiatives funded by a $15 million Bureau of Justice Assistance grant program. So far, more than $4 million has been awarded to indigent-defense initiatives in fiscal years 2009 and 2010, up from zero in 2008. The shift within this prosecutorial-minded agency signals the Obama administration's seriousness about reforming public defense.
In February, Attorney General Eric Holder told lawyers at a Washington, D.C., symposium that the country's criminal-defense system is "morally untenable" and "economically unsustainable," and that solutions are needed. "It must be the concern of every person who works on behalf of the public good and in the pursuit of justice," he said. The goal itself -- guaranteeing that every person accused of a crime has a lawyer as competent and dedicated as Hardwick -- is long overdue. But can Holder's call to action be fulfilled?
The Constitution promises the accused "the Assistance of Counsel for his defence," but the landmark case establishing the right to a state-appointed attorney for all defendants is less than 50 years old. In 1963, the U.S. Supreme Court unanimously concluded in Gideon v. Wainwright that the "noble ideal" of a fair trial "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
What happened in the wake of that case was somewhat less noble. No single method of appointing counsel exists in the U.S. Instead, systems vary from state to state and even from county to county. In some jurisdictions, public-defense offices pay staff a salary. In others, judges appoint attorneys who may also have a private practice, or counties hire attorneys using a low-bid contract system where a lawyer defends a set number of cases for a lump sum. In Florida and in parts of Tennessee, California, and Nebraska, top public defenders are elected in the same manner as district attorneys. Elections sound good, but the public rarely provides much oversight in the interest of criminal defendants. Some states provide 100 percent of the funding for indigent defense, some split the cost with counties, and some require counties to foot the entire bill.
The American Bar Association and the National Association for the Advancement of Colored People have chronicled the appalling outcomes of a broken system. Defendants spend excess time in jail awaiting trial -- sometimes as much or more time than their eventual sentence. Overburdened or inadequately trained lawyers fail to investigate or challenge the state's evidence and instead urge plea deals. Prosecutors capitalize on weak defenses to get the accused to waive counsel and plead guilty.
"There's no oversight, no one holding providers accountable, no one removing the bad actors," says Michigan state appellate defender James Neuhard, who, through his work with the American Bar Association, has become a leader in indigent-defense reform. About 40 percent of cases referred to his office are overturned on appeal because of sentencing-guideline mistakes, he says. A client may have been credited with nonexistent prior convictions, for example, which automatically increased the prison term. A defense attorney with the time, training, and will to mount a serious defense, Neuhard says, would easily catch such simple errors. Instead, taxpayers fund a new trial and the incarceration costs.
Tucker Carrington, director of the Mississippi Innocence Project, says that serious defense-related mistakes appear in nearly every capital case his group handles. Carrington points to an example in Lowndes County, Mississippi, where a federal judge overturned a death sentence for a man named Quintez Hodges in September. The prosecution presented false evidence during the sentencing phase, Carrington says. Hodge's advocate, his court-appointed lawyer, never bothered to test the accuracy of those claims. Instead, it took a federal judge and nine years to correct the injustice. If that kind of incompetence can happen in capital cases, Carrington says, then "you can imagine what's going on in the daily scrum of property crimes and drug offenses."
These are the kinds of cases Hardwick handles in Hinds County, and she has seen how arrests and convictions can decimate the already tenuous lives of the poor. "It's nothing for them to be arrested and in the course of that, lose their homes, furniture, clothes, jobs, spouses," she says. Most of Hardwick's clients are undereducated black men -- some dropped out of school in junior high -- and a dysfunctional public-defense system arguably exacerbates racial injustice. But the issue is a hard sell. "There's not much of a national uproar to try to help people that are thrown into the criminal-justice system and branded criminals," says Rapping of the Southern Public Defender Training Center.
And while countless dedicated lawyers represent the poor, it's no surprise that many flee for private practice. "If you spend any time in courtrooms across America, the deck is so stacked against defenders that it can have a really dispiriting, debilitating effect on you," says Knox County public defender Mark Stephens, who has worked in the field for 20 years. The median starting salary for public defenders was $46,000 in 2007, a major disincentive to law school graduates who often have six-figure debts from student loans. Hardwick's debt is about $150,000.
Like the Southern Public Defender Training Center, Stephens' office in Knoxville, Tennessee, offers another model for innovative public defending. With foundation, state, local, and federal funding, he has hired social workers, an employment counselor, and volunteers from local youth programs, which work to address the circumstances that drive people into the criminal-justice system. The approach, known as holistic defense, asks lawyers to examine more than the criminal charge. It's gaining popularity but can be politically fraught. The top public defender in Maryland was fired in 2009 after being told to justify the social workers on her staff.
Stephens and other advocates, however, say it's effective. "If I don't deal with the addictions, the mental-health problems, the fact that at 14 years old your client's goal is to be a drug dealer because drug dealers make a lot of money and wear nice clothes, beating the charge won't do a thing," Stephens says. "The mistake we make as a country is we don't see public defense as the outlet to do that."
Obviously, a few forward-thinking public defenders and a skills-based training program aren't enough without institutional reform. Most observers acknowledge that there won't and shouldn't be a one-size-fits-all model for rural and urban, high-crime and low-crime jurisdictions. They generally agree, though, that states need to institute and enforce standards that ensure a defense attorney has manageable case-loads, resources, and supervision. Another critical aspect, says Jo-Ann Wallace, president and CEO of the National Legal Aid & Defender Association, is ensuring that public defenders are independent from the judiciary and report to a board or commission that focuses on policy and has oversight of the work.
Those reforms are unlikely to happen unless the federal government helps -- and, if necessary, forces -- states to overhaul public-defending programs so that they meet a constitutionally adequate standard. Earlier this year, the Department of Justice created the Access to Justice Initiative, appointing the liberal Laurence H. Tribe, a Harvard professor and a leading legal scholar, as its head. Many reformers found both developments encouraging. "That really signaled that the Department of Justice was taking seriously this mandate to address the indigent-defense crisis," says Christopher Durocher, government affairs counsel for the Criminal Justice Program at the nonprofit Constitution Project.
The case for reform is simple, Tribe says. "Our country is dedicated to the idea that people who are accused are innocent until proven guilty and deserve a defense," he says. "And partially, it's practical: We waste an enormous amount of time and money."
Tribe's initiative can claim some early successes. The staff is working with the Bureau of Justice Statistics to collect data on indigent-defense systems. This is critical for quantifying the problem and tracking what reforms work and which don't. Currently, there's a wealth of anecdotes about the broken system but few national statistics. "All of those anecdotes, when you confront a limited budget and skeptical lawmakers, they have to be backed up by data," Tribe says.
The initiative is also advising several jurisdictions in Alabama, Illinois, and Louisiana that are attempting to reform their public-defending practices. In New Orleans, for example, through consultations with Tribe's staff, criminal-justice professionals are designing a pretrial release program to ease the stress on jails and public defenders.
His handpicked team of six is small, and the challenges are daunting, but Tribe expects to see significant progress within a year or two.
For that to happen, however, Tribe will need Congress' assistance. The Justice for All Reauthorization Act of 2010, sponsored by Sen. Patrick Leahy of Vermont, would require the attorney general to assist states in meeting that constitutionally adequate standard. If states failed to do so, the Justice Department would have the right to sue. Lawsuits would likely be rare, but the threat is powerful. "This is sort of like what they say about [the sword of] Damocles," says Tribe, whose office helped draft the bill. "It has its effect not when it drops but just when it hangs."
Until then, poor defendants will have to rely on patchwork reforms and hope their lawyer possesses the resources and skills to mount a just defense. For her part, Hardwick continues to fight for her clients. Recently, she took the statement of Euneka Davis, whose fiance, Thomas Stevens, was jailed on a charge of being a convicted felon in possession of a firearm.
Since receiving the case, Hardwick has tracked down the relative of one of the police witnesses, who said that the witness, her sister, is blind and that she was also drunk when she told police Stevens had a gun. Now, Hardwick sits behind her keyboard and types Davis' statement. Wiping tears away, Davis insists that she never saw Stevens with a gun on the day in question or at any other time. She adds that Stevens used to deal drugs but had changed. Before his arrest, he worked mowing lawns and trimming trees.
When they finish, Hardwick prints out a copy of the affidavit for Davis to review and sign and explains that a lie is a prosecutable felony offense. Davis reads the document in silence, then looks up at Hardwick. "This is right," she tells the public defender. "You did right."