Underfunding Public Defenders Can Lead To Sixth Amendment Violations

Constitutional challenges mounting against underfunded public defender offices.

A few months ago, I wrote about the sorry state of public-defender funding. I noted that some states’ PD offices are so underfunded that they may well be failing to provide criminal defendants with the constitutional minimum of adequate representation. For example:

Last summer, the Missouri PD system made news when an ABA study concluded that Missouri PDs spend less time on their cases than they “should… in order to provide reasonably effective assistance of counsel” — the constitutional bare minimum.

What I didn’t mention at the time is that this ABA study may have potentially serious consequences for Missouri. That’s because the theory that an underfunded PD system can violate the Sixth Amendment right to counsel in criminal cases is not a novel one. It’s been the basis of successful civil rights lawsuits before, and it likely will find its way into more federal courts as the continued underfunding of PD offices around the country results in inadequate representation for criminal defendants.

Here’s one of the theory’s success stories. In 2011 the ACLU of Washington filed a Sixth Amendment-based class action civil rights suit challenging the PD systems of two cities, Mount Vernon and Burlington. In 2013, after a trial, a federal judge in the Western District of Washington held that the way the PD systems in Mount Vernon and Burlington were run — including their funding — “deprived indigent criminal defendants… of private attorney/client consultation, reasonable investigation and advocacy, and the adversarial testing of the prosecutor’s case.” The judge concluded that “the Cities are therefore liable… for the systemic Sixth Amendment violation proved by plaintiffs.”

The main remedy the judge imposed for this violation was an injunction requiring the cities to hire a Public Defense Supervisor. The Public Defense Supervisor is responsible for coordinating improvement in the cities’ PD systems and issuing periodic reports to plaintiffs’ counsel, with the court retaining jurisdiction for three years for the plaintiffs to call on if the cities fail to make progress. The cities were also hit with a big attorney-fee award of over $2 million.

With success like that in Washington, it’s no surprise that this past week the ACLU of Idaho filed a Sixth Amendment-based class action civil rights suit challenging the state of Idaho’s PD system.

According to the complaint, “more than five years ago, the State of Idaho asked the National Legal Aid and Defender Association (‘NLADA’) for a report on its public-defense system.”  The report that NLADA apparently issued in response to that request is here, and it’s not pretty. Its major conclusions:

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The National Legal Aid & Defender Association (NLADA) finds that the state of Idaho fails to provide the level of representation required by our Constitution for those who cannot afford counsel in its criminal and juvenile courts. By delegating to each county the responsibility to provide counsel at the trial level without any state funding or oversight, Idaho has sewn a patchwork quilt of underfunded, inconsistent systems that vary greatly in defining who qualifies for services and in the level of competency of the services rendered.

Last week’s complaint piggybacks on this report, alleging that “five years later, the State has failed to fix this unconstitutional system.”  It asserts that “in at least six Idaho counties, individual public defenders are responsible for handling more than twice the work that one attorney should ever take on,” and that these high caseloads mean that criminal defendants are often unrepresented at their initial appearances and have very little attorney contact through the remainder of their proceedings. The complaint likewise claims that low funding levels mean that PDs are “unable to investigate… cases in any meaningful way.” Yep, that sounds pretty bad.

And it will be tough for the state to claim that these allegations are unfounded; even Idaho Governor Butch Otter acknowledged in his “state of the state” address earlier this year that “the courts have made it clear that our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.”

There are some clear takeaways from these suits: Cities and states responsible for providing PD services should fund their offices adequately to comply with their constitutional obligations and to avoid litigation. ACLU chapters have every reason to continue bringing civil rights suits in jurisdictions where PD systems are underfunded. And, for the overworked PDs out there, take some comfort in the fact that there are other lawyers out there working to fund your offices, reduce your caseloads, and, hopefully, let you do your jobs the way you want.


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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.