Underresourced Public Defenders Make for a Courtroom Crisis

By Beck Reiferson ‘23

Image of a Virginia courthouse.

Image of a Virginia courthouse.

The Sixth Amendment of the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to… the Assistance of Counsel for his defense.” Various Supreme Court cases have interpreted this guarantee of legal counsel to extend to defendants at both the federal and state levels who are unable to afford their own attorneys. In Strickland v. Washington (1984), the Court went even further, holding that the “Sixth Amendment right to counsel is the right to the effective assistance of counsel”, and that having deficient legal representation could be grounds for appeal. The Court’s rulings guaranteeing that all criminal defendants have a right to effective counsel are supposed to ensure that criminal procedures are fair—that the prosecution does not have a significant advantage over even the poorest of defendants. Most attorneys who represent such indigent defendants are called public defenders. However, the extreme lack of resources devoted to public defender’s offices today, manifested in the form of understaffing and underfunding, has rendered the constitutional right to an attorney a mere paper guarantee, protecting indigent defendants in theory, but rarely in practice.

Perhaps the largest problem facing public defender’s offices today is the disequilibrium between the supply of public defenders and the demand for public defenders. A clear majority of felony and state defendants require the assistance of a public defender, according to a study conducted in 2000 by the U.S. Department of Justice, and there simply are not enough public defenders to meet this need. A 2019 report from the Brennan Center for Justice found that “only 27 percent of county-based and 21 percent of state-based public defender offices have enough attorneys to adequately handle their caseloads.” That same year, The New York Times described how one public defender in Louisiana had 194 felony cases to work on in just a single day—the equivalent of the work of five attorneys. 

These statistics and individual stories comport with my own experience interning at a State’s Attorney’s Office in Bridgeport, Connecticut, during my senior year of high school. I was privy to conversations between defense and prosecuting attorneys in judges’ chambers and was able to sit in the courtroom as defendants entered their pleas. It took only a few days for me to realize that there were very few public defenders working in that courthouse, each responsible for a large number of cases. One of the public defenders was so overwhelmed that, at one point, she walked out of the courtroom.

Chronic underfunding both contributes to and compounds this issue of chronic understaffing. The American Bar Association has noted that in most states throughout the country, “the compensation and support for indigent defense attorneys lag far behind their prosecution counterparts.” The comparatively low salaries for public defenders disincentivizes prospective attorneys from seeking employment in a public defender’s office. 

Together, understaffing and underfunding have serious implications for the adversarial system of criminal justice in America. Burdened by overwhelming caseloads, public defenders are often unable to devote sufficient time to individual cases, to get to know their clients well, to develop a strong defense, and to weigh the pros and cons of potential plea deals. Overworked public defenders may have an incentive to encourage their clients to accept plea deals, since going to trial would mean even more work for the public defender. In addition to contributing to problems of understaffing, the underfunding of public defender’s offices diminishes these offices’ ability to hire expert witnesses and investigators. The Brennan Center for Justice report mentioned above found that 40% of county-based public defender’s offices did not have a single investigator on staff. These shortcomings put the public defender and his client at a significant disadvantage compared to the better-funded prosecutor. They jeopardize the fairness of criminal prosecutions and thus imperil the efficacy of the existing Sixth Amendment jurisprudence.

One reason why states have not resolved the persistent issues facing public defender’s office is that it is generally not good political strategy to help those accused of crimes: politicians often compete to present themselves as the candidate who is “toughest on crime” and pledging to commit more resources to public defenders would likely hinder their ability to frame themselves in such a way. Additionally, indigent criminal defendants do not exactly comprise an influential interest group or powerful voting bloc, and they thus may not have the political muscle necessary to bring about change on their own. 

Change is long overdue, however, and now—in a time period in which the phrase “mass incarceration” has entered into the vernacular and a growing percentage of the public thinks the country is too tough on crime—may be the best time in recent history for change to occur without significant political consequences. Politicians should adjust their policies accordingly and increase funding for public defender’s offices so that they can hire more attorneys, investigators, and expert witnesses—so that trials can be fair.

Beck Reiferson