Indigent Defense in America: A Time of Despair, but a Shining Ray of Hope (Inside NACDL)

Budget cuts have decimated the federal indigent defense system. The Sixth Amendment right to counsel should not be treated as just another line item in a budget. Access to effective assistance of counsel is a constitutionally ordained individual right that provides a vital check on the power of the government.

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The 50th anniversary year of the Gideon decision has been nothing less than tumultuous. As I have noted previously in this column, for the first time since the adoption of the Criminal Justice Act in 1964, the federal indigent defense system has been under assault.1 That system has been a model for indigent reformers seeking to address the pervasive inadequacy of indigent defense services throughout the states. A robust, fully resourced hybrid program with outstanding federal defenders serving as the primary defenders, supplemented by outstanding panels of private attorneys, has delivered first-rate service to clients — zealous and effective advocacy that has fulfilled the promise of Gideon in federal jurisdictions. But now that model has been seriously degraded.

A Time of Despair for the Federal Indigent Defense System

Beginning with a budget cut that preceded the sequestration mandated by the Budget Control Act, and then the imposition of far more draconian budget cuts triggered when the sequestration took effect, funding for the nation’s federal defender offices has been slashed. Layoffs, unfilled positions, and furloughs have imposed serious hardship upon many offices and jeopardized the caliber of service available to the indigent defense accused. All this was done without any showing whatsoever that federal defender offices were overstaffed or inefficiently managed. The cuts to federal defenders have also had a negative impact on panel attorneys. In many jurisdictions, federal defenders provided training and resource support for panel attorneys, but much of that has been curtailed as a result of the cuts. The first wave of cuts also resulted in a decision to defer panel payments, with serious implications for panel attorneys who depend upon a steady cash flow to maintain their practices.

With no relief in sight as fiscal year 2014 approached, a second round of cuts has further decimated the federal indigent defense system. On Aug. 15, 2013, the Executive Committee of the Administrative Office of the Courts, the entity that administers funding for federal indigent defense, adopted a series of measures that represent an unprecedented blow to indigent defense in this country. Justifiably concerned that a new round of deep cuts to the federal defenders would literally decimate many offices, the Executive Committee acted to reduce the panel compensation rate from $125 per hour to $110 per hour, and impose a further four-week deferral in panel attorney payments.2 This 12 percent reduction in compensation rates for panel attorneys represents the first time the rate has been reduced. The reduction reverses years of effort, with strong support from the judiciary, federal defenders, and the bar to attain the $125 rate (which is still below the $139 authorized by Congress). While public perception may be that $110 per hour is pretty darn good, many do not realize that it does not represent a panel attorney’s actual pay. Attorneys depend upon these rates to underwrite overhead — rental costs, various kinds of insurance, utilities, support staff, research services — and all the other things necessary to maintain a law practice. A 2009 survey estimated average hourly overhead at $70. Although overhead has no doubt increased since that survey, the rate cut will leave panel attorneys with a net of just $40 per hour before taxes.

At the same time that these unprecedented cuts were imposed upon the panel component of the federal system, the federal defenders are facing an additional 10 percent funding cut unless Congress restores funding. Although this latest round of cuts is not as deep or as devastating as it might have been, that is small comfort given the sacrifices that have already been made by federal defender offices throughout the country.

All this is nothing less than deplorable. The Sixth Amendment right to counsel should not be treated as just another line item in a budget. When the government seeks to strip a person of life or liberty, access to effective assistance of counsel is not pork, waste, or excess. It is a constitutionally ordained individual right that provides a vital check on the power of the government. It embodies a fundamental commitment to the dignity of every human soul. It is particularly distressing that these cuts have been directed at the one indigent defense system that has worked well. As of this writing, the budget stalemate in Washington continues. Efforts are underway to convince the funders in Congress to put aside the partisan struggles over the budget and provide the necessary funding to restore this one service that all people of every political ideology should agree is a vital bulwark of the nation’s system of justice.

DOJ Provides a Shining Ray of Hope for State Reform

But even as many despair of the federal crisis, there has been a development that may constitute the first sign that real reform and real support for indigent defense services in America are just around the corner. Throughout his tenure as attorney general, Eric Holder has repeatedly decried the deplorable state of indigent defense in America and pledged to support reform.3 On Aug. 14, 2013, the Department of Justice took an historic step that is tangible evidence that the attorney general means business. The United States through the Department of Justice (DOJ) filed a Statement of Interest in a federal court in Washington in a class action lawsuit alleging that two cities systematically deprived accused defendants of access to effective assistance of counsel.4 For three distinct reasons, that Statement of Interest is an unprecedented step with profound implications not only for indigent defense, but for the defense function more generally.

The filing was submitted in response to the court’s request that the parties respond to several questions, including what remedies are appropriate and within the court’s power if it found that the cities violated the defendants’ right to counsel. Without taking any position on the merits of the plaintiff’s claims, the DOJ emphatically stated, “The United States has an interest in ensuring that all jurisdictions — federal, state and local — are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon v. Wainwright.”5 With this ringing declaration, DOJ has broken new ground by signaling that it will not remain silent when chronic underfunding inevitably results in substandard representation. DOJ went on to answer the court’s inquiry by opining that the court may grant injunctive relief if systemic constitutional deficiencies are found and further asserted that the court may appoint a monitor to implement remedies.6  

Another aspect of the DOJ Statement of Interest that is of extraordinary significance is that the case involves the rights of misdemeanor defendants. While it is natural that concern for the adequacy of counsel in felony prosecutions has always taken precedence, for far too long the lack of access to qualified counsel in misdemeanor cases has resulted in massive injustice.7 In this era of sweeping collateral consequences, any criminal conviction, no matter how minor, can have life-altering consequences. Thus, the fact that DOJ spoke out in a case involving misdemeanor defendants should be a powerful message that the failure to provide adequate representation in those cases is unacceptable.

Finally, and perhaps paving the way for a true cultural change, the DOJ embraced the revolutionary concept that it is no longer adequate to assess an indigent defense system by reference to caseloads, but rather the focus must be on a defense attorney’s “workload.” Referencing the ABA Ten Principles of a Public Defense Delivery System, the DOJ noted that workload “takes into account not only a defender’s numerical caseload, but also factors like the complexity of defenders’ cases, their skills and experience, and the resources available to them.” This concept recognizes a reality that has long been understood by practitioners: effective criminal defense is not a numbers game. It is an art and a science. The proper handling of any given case requires varying levels of skill, time and attention. Looking to workloads is a first step toward ending “meet and plead” practices and the assembly line approach to criminal justice that has made a mockery of Gideon’s promise.

Defenders, whether employed in institutional settings or serving by court appointment or contract, must have the time and resources to effectively represent every individual client. Measuring performance solely by looking at caseloads is a proven failure. And since many funding entities wrongly evaluate defense providers by measuring cost per case, a key contributor to meet and plead practices, this new approach by DOJ may truly unlock the door to meaningful reform.

So yes, despite the setbacks on the federal side, there is truly a ray of hope that the 50th anniversary of Gideon may yet prove to be the year that made a difference.


  1. Norman L. Reimer, The Gideon Anniversary: 50 Was Important — But 51 and Beyond Must Be the Focus, The Champion, April 2013 at 11, 13.
  2. The rate cut, which was slated to take effect as of Sept. 1, 2013, and will last through Sept. 30, 2014, was described as a temporary cut.
  3. In the past year and a half, the attorney general has repeatedly highlighted his concern for the state of indigent defense in America. Speaking at the American Bar Association’s National Summit on Indigent Defense in New Orleans on Feb. 4, 2012, Mr. Holder observed that “the basic rights guaranteed by Gideon have yet to be fully realized.” At a celebration of Gideon in Washington, D.C., on March 15, 2013, he said, “It’s time to reclaim Gideon’s petition — and resolve to confront the obstacles facing indigent defense providers. Most of all, it’s time to speak out — with one voice — to rally our peers and partners at every level of government and in the private sector to this important cause.” And, most recently, at the ABA’s Annual Meeting in San Francisco in August 2013, the attorney general observed: “Fifty years ago last March, this landmark ruling [Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one. Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met.”
  4. Wilbur v. City of Mount Vernon, No. 2:11-cv-01100-RSL (W.D. Wash. filed Aug. 14, 2013).
  5. Wilbur, slip op. at 3.
  6. Id. at 6.
  7. NACDL has long recognized this problem. See Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts (2009); Alisa Smith & Sean Maddan, Nat’l Ass’n of Crim. Def. Lawyers, Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts (2011).  

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