America’s criminal courts are facing a crisis, namely the lack of public defenders and court appointed attorneys to defend people charged with crimes.
Over the past decade, the paucity of defenders for the indigent has grown from an issue lurking just beneath the surface of our judicial system to one of an acute nature. In some states it has grown beyond acute and is, in fact, a critical problem.
To understand the issue, we need to go back to 1963 when the Supreme Court of the United States in the case of Gideon v. Wainwright decided that indigent defendants, in cases where there is the potential of jail time, had a constitutional right under the Sixth Amendment to court appointed counsel.
States and local courts then scrambled to create public defenders, paid for by the government, to handle indigent defendants’ cases. When a public defender is not available, the court must appoint a private attorney to represent the poor. Often those attorneys are paid with local funds.
But the demand for public defenders keeps rising and public defenders are leaving their positions, in record numbers, due to burnout, low wages, staggering workloads and crippling student debt.
In a 2016 article, the Guardian indicated that approximately 90 percent of all criminal defendants qualify for a public defender. Hence the workloads for these attorneys are horrendous.
One commentator referred to them as the “pack mules” of the legal system.
Yet in some states, the burden is far too great. For example, in Cole Co., Missouri the caseloads are 225 percent above recommended levels. Rural areas are hit especially hard by this problem.
For example, in Ohio, according to the Ohio Supreme Court, 75 percent of Ohio’s lawyers work in the state’s seven largest counties leaving many of the remaining 81 counties to be without high quality legal services.
More than half of Ohio’s population live in these smaller counties and people and courts are often unable to find an attorney when one is needed.
In Pennsylvania in May 2024, the state had 850 public defenders, according to a professor at the University of Pennsylvania law school. The need is for 1,200 lawyers leaving a 30 percent shortfall.
The study also showed that 60 of the Commonwealth’s 66 counties had attorney staffing levels below what is required.
Legal scholars have called this dearth of public defenders a “national crisis.”
The Harvard Law Review reported in 2023: “Just over the last decade, the Sixth Amendment Center, a nonprofit organization that evaluates indigent defense systems, has published reports documenting how the constitutional right to counsel in our criminal courts is routinely violated in Delaware, Illinois, Indiana, Maine, Mississippi, Nevada, Oregon, Utah and Wisconsin. During the same period, the American Bar Association has developed evidence-based state-specific workload standards for public defenders in Colorado, Indiana, Missouri, Louisiana, Rhode Island…New Mexico and Oregon which, if followed, would require most offices to double in size.”
As a result of the lack of public defenders, indigent clients often languish
in jail longer than their affluent counterparts. Also, they often get scant legal assistance.
On this edition of Next Witness…Please, retired judges Tom Hodson and Gayle William-Byers examine this crisis, its ramifications, and possible solutions.
If you want more information about this topic, please check out the 6th Amendment Center at https://6ac.org/.
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