‘McJustice’ - the crisis of indigent defense in America

Posted: July 15, 2008 4:10 pm

“The death penalty is too often reserved not for the "worst" offenders, but for those defendants with the worst lawyers”—ACLU death penalty strategist Christopher Hill in a column for the Atlanta Journal-Constitution.

It’s not shocking to learn that many of the 218 DNA exonerees were represented by public defenders at trial. They were all innocent, but they all lost. In some cases, overburdened, inexperienced and underfunded public defenders were simply not equipped to stand up against the state. And the system hasn’t improved much in the last three decades. It wasn’t always the lawyer’s fault, of course. In many cases a talented defense attorney did all he or she could to represent their innocent client, but lost to a broken system that convicts the innocent based on flawed evidence.

Indigent defense in the U.S. is a state-by-state system with no national standards. Criminal defendants are often forgotten when it comes time to trim a state budget, and indigent defense services feel the pinch. A recent report on Michigan’s indigent defense services found a system that is wholly incapable of upholding a defendant’s constitutional right to adequate defense counsel.

The report, prepared by National Legal Aid and Defender Association, found:“… judges handpicking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trials or sentencings; attorneys violating their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused …”

The report found a culture that emphasized speed and revenue over justice to such an extent that employees of the system in Ottawa County referred to the days devoted to arraignments of low-income people as “McJustice Day.” Inadequate defense counsel provided by the Michigan system led to the wrongful convictions of innocent men like Eddie Joe Lloyd and Walter Swift, who were later exonerated with the Innocence Project’s help.

Download the report and hear an NPR story on the findings here.

Unfortunately, the situation in Michigan is all too common. Across the country, people are regularly being denied their constitutional right to adequate representation, and this system of sub-par representation is causing wrongful convictions. Although many public defenders are dedicated and competent, publicly-appointed attorneys are overworked and under-funded in even the best jurisdictions.

The worst jurisdictions are tolerating lawyers who are incompetent and poorly trained, apathetic and condescending to their clients, insufficiently independent from judges and prosecutors; or even occasionally bullies and drunks. Institutional deficiencies in how the public defense system is structured and funded perpetuate these problems. It’s difficult to improve indigent defense across 50 diverse states and for the federal government when there’s no uniform set of standards. To fill this vacuum, NLADA and the American Bar Association published The Ten Commandments of Public Defense Delivery Systems, calling for speedy appointment, competent representation and adequate funding of public defense offices.

Funding for indigent defense also varies by state. Even though states are constitutionally obligated to provide defense counsel to those who can’t afford it, many states leave the funding to unreliable local sources, including court fees and traffic tickets. To find out how public defense is doled out in your state, visit the National Association of Criminal Defense Lawyers’ state-by-state listing of indigent defense delivery structure and funding.

Here are a few of the most pressing indigent defense crises around the country:

• In Minnesota, the state legislature has just cut indigent defense funding by $1.5 million which will lead public defender offices to cut staff, delaying criminal cases and causing some types of cases not to be represented at all.

• Last August, the director of the Georgia Capital Defender’s Office resigned, saying that the office could not adequately represent clients facing the death penalty with the budget provided by the state. Then, in June, budget cuts in that state forced the closing of an important public defender office that takes on defendants when there are conflicts of interest with other public defenders.

• A U.S. Department of Justice report on California’s system found that low-bid contractors are providing inadequate representation to low-income defendants. In one rural county in 1997, three attorneys – with no help from paralegals or investigators – took on 5,000 cases.

• In 18 states, including Michigan, indigent defense is paid for by individual counties who often get the funds through property taxes or court fees paid by defendants. More on indigent defense:Read about bad lawyering as a cause of wrongful convictions.

Seattle Times three-part series: An Unequal Defense: The failed promise of justice for the poor,

Hastings Law Journal: The Right to Counsel in Criminal Cases, A National Crisis

The Fair Defense Report: Analysis Of Indigent Defense Practices In Texas

Gideon at 44: Fighting for the Right to Counsel