Pleading Out: America’s Broken Public Defense System

By Simon WaxmanMarch 18, 2013

    Chasing Gideon by Karen Houppert. New Press. 288 pages.

    IN THE UNITED STATES, if you are charged with a crime that might land you in prison, whether a felony or misdemeanor, at the state or federal level, as an adult or juvenile, you have a right to effective representation in court, regardless of your ability to pay for it. 

    This will come as a surprise to many defendants. If you are poor and facing jail time, you will get your representation eventually, but there is a fair chance it won’t be effective. Some public defenders are incompetent, and some are able and committed. Either way, they won’t have time for you. 

    It isn't hard to see why. In 2007, the last time the Bureau of Justice Statistics surveyed the nation’s indigent defense services, there were 957 public defender offices employing 15,000 full-time staff. These offices handled about 80 percent of the country’s criminal cases, on a combined budget of $2.3 billion. In that same year, 2,330 state prosecutor offices employed 78,000 full-time staff. Their budgets were falling, but with a total of $5.8 billion in the kitty, their means far outstripped that of their defender colleagues.

    Faced with a larger and better-funded prosecution regime, defenders can’t keep up. Twenty-two states operate public defender offices, and 17 reported full caseload information to the Bureau in 2007. Only four of those 17 states had enough attorneys to meet the government’s caseload standards, guidelines for the maximum number of cases that should be assigned to an attorney. Where public defense operates at the county level, less than a third of offices had enough attorneys. Other vital defense staff — investigators, paralegals, administrators — are similarly in short supply. It should come as no surprise, then, that you’re more likely to wind up in jail if represented by a taxpayer-financed lawyer than by one you hire yourself.

    The consequences of the defender resource shortfall are obvious in Detroit, to name just one example. In the Motor City, misdemeanor cases are handled by a low-bid private contractor. For $661,400, five part-time attorneys working for the Misdemeanor Defender Professional Corporation dispose of 12,000–14,000 cases per year. That comes to 32 minutes of attorney time spent on each case, according to the National Legal Aid & Defender Association. 

    The numbers point to a disconnect between the principle — that everyone has a right to effective counsel — and actual practice. That difference haunts the American justice system.

    The principle is enshrined in the Sixth Amendment to the Constitution, which states, “In all criminal prosecutions, the accused shall enjoy the right […] to have the Assistance of Counsel for his defence.” The Amendment was ratified, along with the rest of the Bill of Rights, in 1791. Yet for 170 years, this constitutional provision was deemed to apply only in federal courts. A defendant in a state court — where most defendants find themselves — might have had guaranteed access to an attorney, but only in special circumstances or if they were lucky enough to be tried in a jurisdiction that had taken the burden of public defense upon itself. 

    Not all jurisdictions did, and that is why Clarence Earl Gideon, a petty crook who nonetheless possessed a tenacious sense of justice, petitioned the Supreme Court in a case that would become one of the most significant in the history of American criminal law. 

    In the summer of 1961, Gideon was charged with breaking into a Panama City, Florida, pool hall and robbing it of liquor and change lifted from a cigarette dispenser. Impoverished and adrift, he requested that the court provide him an attorney. When his request was denied, he made a flailing and ultimately unsuccessful attempt at his own defense. From his prison cell, he appealed his conviction to the Supreme Court, arguing that his right to an attorney had been violated.

    On March 18, 1963, the justices agreed, and in ambitious terms. “Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” Justice Hugo Black wrote in the majority opinion in Gideon v. Wainwright. “This seems to us to be an obvious truth.” The right to effective assistance of counsel was deemed fundamental and would be applied to the states in all felony cases. In Argersinger v. Hamlin (1972), the right was extended to any case, including misdemeanors, in which a defendant could serve jail time. Subsequent cases, such as Strickland v. Washington (1984), United States v. Cronic (1984), and Wiggins v. Smith (2003) asserted that the right to assistance is a right to effective assistance and laid out standards of effectiveness and ineffectiveness.

    The Gideon decision was unanimous and, for the most part, had the support of the states. The story is told memorably in the 1964 book Gideon’s Trumpet, a learned and celebratory account by Anthony Lewis, who covered the case for The New York Times.

    But as Lewis recognized at the time, the Court had established a right, and a right is not the same thing as its exercise. The justices left it up to the states to determine how the right to effective counsel would be implemented, and the results have been shoddy. 

    On the 25th anniversary of the decision, Lewis lamented that Gideon’s trumpet had already been “muted”: “We have to recognize that the premise of Gideon has not really been fulfilled. […] Too few lawyers represent poor defendants, and they are underpaid and grotesquely overworked.” In an editorial on the 30th anniversary, The New York Times sharply criticized a government that “stages mock trials.” And on the 40th anniversary, Lewis wrote, “Gideon […] would be disappointed today at the imperfect realization of his dream.”

    Now we are 50 years out, and as journalist Karen Houppert makes clear in her new book, Chasing Gideon: The Elusive Quest for Poor People’s Justice, the situation for indigent defendants continues to be dire. Houppert’s book is an unrelenting spectacle of despair: innocents convicted due to lack of adequate counsel, a child abused by police and the courts under the diverted gaze of a contract public defender, dedicated lawyers exhausted by a system that cannot give their clients a fair chance, a mentally retarded defendant sentenced to the death chamber. 

    Houppert uses individual cases to highlight the struggle the poor face in seeking justice. She tells the story of Greg Bright, a New Orleans man who served 27 years for a murder he didn’t commit. What put him behind bars was the testimony of a single eyewitness, who the state almost certainly knew was mentally ill. The witness, who had a history of hallucinations and psychosis, was hospitalized and received mental health services on the same day in 1976 that she was initially scheduled to testify. Yet Bright’s inept public defenders did no investigation on his behalf. In prison he continued to fight for his innocence but for decades he got nowhere. “Two prosecutors tried Greg’s case,” Houppert writes. “[O]ne of them would go on to be the judge hearing all his appeals.” Her indictment of his treatment speaks to a broken constitutional promise: “Gideon guaranteed [Bright] an attorney, but a flawed indigent defense system and a lackluster lawyer rendered that almost meaningless.”

    Bright might have had sounder defense had he not lived in New Orleans, where the defender program has historically been underfunded and neglected. Houppert reports that before post-Katrina reforms — which are already backsliding, thanks to Great Recession budget cuts — public defenders were part-time conscripts, dragged by judges from private practices that paid far better than indigent work. The lawyers benefited financially by doing as little as they could get away with on behalf of poor clients, instead reserving their attention for paying customers. New Orleans’s 30–35 part-time public defenders “averaged 28,000 clients annually,” Houppert writes. 

    Even a devoted, full-time defender faces enormous obstacles. Carol Huneke, an attorney in Spokane, Washington, risked being held in contempt in order to delay a case so that she could adequately defend her client, who was accused of vehicular homicide. Houppert reports that Huneke had 101 cases at the time, while the prosecutor in that case had 28. Only with the aid of affidavits by colleagues explaining that she was too overworked to proceed — and an appeal to the local media — was she able to win a continuance and, eventually, her case. Huneke was later fired for her outspokenness about the decrepit state of public defense in Washington. 

    Houppert’s narratives of crimes, investigations, and court proceedings are careful and engrossing, and she has has an excellent command of the relevant data, which she intersperses among interviews and case histories to great effect. She informs us that in Miami, some public defenders handled more than 700 felony cases in 2008 (the standard is 150), and others handled upwards of 2,200 misdemeanors (the standard is 400). In Missouri in 2004, defenders dispensed with a case every 6.6 working hours. In Louisiana, the accused might spend 120 days in jail before even seeing a lawyer. Bright got $190,000 in restitution for his nearly three decades of false imprisonment.

    Yet exposing the injustice of the system is not enough now, just as it wasn’t enough when Lewis and others mourned the failure to turn principle into reality. Something is missing in Houppert’s account; in fact, several things are.

    What is missing, first and foremost, is the run-of-the-mill guilty defendant. The only certain criminal without mitigating circumstances who gets more than a couple paragraphs in Chasing Gideon is Gideon himself.

    Any decent person would agree that the system has failed when an innocent person is convicted. Or if the system has not failed — after all, due process doesn’t guarantee the right outcome — we can at least agree that in such a case it has produced an unjust result. We don’t need to be convinced that jailing innocent people is wrong. 

    What is more challenging and more important is to convince the public to pay for the defense of people who are guilty. This is the essential function of public defense, because the majority of the accused are in fact guilty. And everyone enters court innocent according to the law. It is impossible to protect only the actually innocent.

    Of course, defending the innocent is important because it preserves the liberty of people wrongly charged. But defending the guilty preserves the legitimacy of the adversary system of justice itself. If we do not provide effective counsel even for the guilty, then we are giving up on the principle of due process that protects individuals from the power of the state. 

    Upholding Gideon in practice means zealously defending the least sympathetic members of society: thieves, conmen, repeat drunk drivers, rapists, kidnappers, murderers. If their defense is inadequate, we can't be confident in their convictions. Furthermore, if they are left out of the equation, tough-on-crime politicians will take advantage. Nothing sharpens a budget-slashing blade like a vicious criminal receiving a “Cadillac defense.” Houppert and those who support her project need to own these criminals too. The pursuit of justice is not a sob story. It’s a principled stand for a system that only works when it is equally committed to everyone’s protection.

    Houppert gestures at these points, but gives them too little emphasis. 

    Another component of the right-to-counsel problem we don’t see much of in Chasing Gideon, or in other popular literature on public defense, is the prosecution and its interests. District attorneys have tremendous discretion in deciding who will be charged and what they will be charged with. Through mandatory minimums and three-strikes laws, legislatures have redistributed judges’ power over sentencing to prosecutors, who essentially decide how a guilty defendant may be sentenced by choosing among possible charges. And public defenders are overworked in part because prosecutors bring too many cases for defenders to handle.

    Houppert does an admirable job of describing this, but she punts on explanation. There is no effort in Chasing Gideon to understand why prosecutors charge so many defendants and seek such long sentences, no attempt to understand the structural factors that drive prosecutors’ behavior.

    And what, in moments of reflection, do prosecutors have to say about the dramatic imbalance in the resources they and their defender colleagues enjoy? What do they think of mass incarceration, the war on drugs, for-profit prisons, and other arguably corrupting aspects of the justice system? Just as we learn something of the large challenges we face when we take intimate portraits of defenders, we would learn from a close look at the prosecutors who bring the cases that are crippling the system. Without that, we are left with a caricature of criminal prosecutors as bad men and women whose only goal is to lock people up for as long as they possibly can. This is not a useful image.

    What do prosecutors think of plea bargaining, for instance? Houppert barely scratches the surface here, but anyone interested in securing truly effective counsel for the indigent needs to go deep into the effects of plea bargaining, the principal means by which convictions are secured in U.S. courts today.

    In Chasing Gideon, plea bargains are presented as an unfortunate product of a broken system. Overburdened defense attorneys are forced to advise clients to take pleas because the only other option is an ineffective defense. If the defender can’t make the time to investigate and prepare a proper case, then the defendant will be hammered at trial. Under these circumstances, plea bargaining becomes rational, and there is nothing defenders can do about it.

    But plea bargains are not just a product of the system. They are the system. Some 95 percent of cases at the state and federal levels are resolved in negotiated guilty pleas. As Justice Anthony Kennedy wrote in a majority opinion last year, “Criminal justice today is for the most part a system of pleas, not a system of trials.”

    The quest for poor people’s justice won’t end until plea bargaining is massively curtailed. In individual cases, it often seems like a good idea, but its effect on the criminal justice system is corrosive. Easy bargaining rules allow prosecutors to amp up caseloads and defense attorneys to avoid their obligation to zealous advocacy. Rather than stand firm against the surfeit of charging and sentencing, the legal system has turned to plea bargaining in order to accommodate it.

    It is worth pondering what exactly is this accommodation is getting us. A court system that efficiently delivers justice, or one that efficiently puts people in jail? New research suggests that it might be the latter: many who plead guilty may be innocent.

    The essence of the plea bargain is that prosecutors threaten defendants with hefty penalties if they don’t cooperate and offer leniency if they do. The Supreme Court has not always looked positively on such deals, but in Brady v. United States (1970), the justices concluded that plea bargaining is acceptable as long as defendants do not “falsely condemn themselves.” But, as Lucian E. Dervan, a lawyer, and Vanessa A. Edkins, a psychologist, argue in their study, “The Innocent Defendant’s Dilemma” (published in the Journal of Criminal Law & Criminology), there is good reason to believe this is precisely what happens. Using a group of student subjects, Dervan and Edkins carried out an experiment designed to mimic the circumstances a defendant faces when considering a plea bargain. Half of the participants were put in a position to cheat on a logic exam by supplying answers to another student whom they did not know was working with the researchers. Nearly all of these participants cheated at the urging of the plant. Another group of participants were given no opportunity to cheat. The researchers then accused all of the students, guilty or innocent, of cheating.

    Participants were given the option of defending themselves in front of an academic review board that, like a trial court, almost always rules against petitioners. The board could mete out a harsh sentence. If found guilty, students would lose compensation for study participation and be required to enroll in an ethics course that would demand up to three hours per week of their time for a whole semester. There would be an assigned paper and a final exam. 

    Or participants could “take the plea”: admit guilt and surrender their compensation, but face no review or additional discipline.

    One might assume that innocent students would prefer to face the board. After all, they had not done anything, as a fair process should confirm. One would be wrong. Some 56 percent of innocent students plead guilty. “When study participants are placed in real [...] bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation,” Dervan and Edkins write, “innocent individuals are actually highly risk-averse.”

    Even if courtrooms are different — it would be surprising if half of innocent defendants were condemning themselves — we should take seriously these insights into the psychology of plea bargaining. There are many factors beyond guilt and innocence involved in a defendant’s decision to plead. It’s not hard to imagine that the risk of a severe penalty would prompt a defendant to plead when he otherwise wouldn’t. And the expense of a trial in money, time, and stress can have a similar effect. Indeed, The law recognizes that defendants plead even while maintaining their innocence. In the so-called Alford plea, the accused accepts guilt because he feels there is no chance of winning his case. The choice to plead may be voluntary, but that doesn’t mean it isn’t, in a meaningful sense, coerced.

    It is unfortunate that Houppert doesn’t thoroughly engage issues such as the defense of the guilty, the role of prosecutors, and the consequences of plea bargaining. But Chasing Gideon is nonetheless a valuable book. Indeed, it is essential. We need these stories, lest we mistakenly believe that equality before the law is equality in practice. As Houppert shows over and over, the highest principles laid down in the Constitution and reaffirmed in the Gideon decision prove to be little more than charming platitudes once the real process of legal action takes its course.


    LARB Contributor

    Simon Waxman is Managing Editor of Boston Review. He has written for The Boston Globe, Alternet, Jacobin, McSweeney's, and others.


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