There’s been quite a bit going on in the world of indigent criminal defense recently: the Department of Justice is looking to support the ACLU in an Idaho lawsuit over public defense funding; another PD office is joining the Orleans Public Defenders in refusing cases as a result of underfunding; and public defenders are realizing that their own implicit biases might be as much of a problem as judges’ and prosecutors’ biases. Rather than decide among these topics today, I’ll instead take a relatively shallow wade into all three.
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DOJ Seeks to Join ACLU In Idaho PD-Funding Lawsuit
Regular readers may recall that way back last June I covered a lawsuit filed by the Idaho ACLU challenging Idaho’s PD system. The ACLU complaint asserted 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.” It alleged that criminal defendants are often unrepresented at their initial appearances and have very little attorney contact through the remainder of their proceedings. And it claimed that PDs are “unable to investigate… cases in any meaningful way.”
Idaho responded to the ACLU’s suit with a motion to dismiss, partly on the basis that, because the state had delegated responsibility for indigent criminal defense to its counties, the counties were actually the proper defendants. The ACLU responded that the state was ultimately responsible for assuring adequate criminal defense, so this delegation argument didn’t actually support dismissal.
Back in January, Idaho 4th District Judge Samuel Hoagland acknowledged some of the ACLU’s arguments but nevertheless dismissed the case (another move I covered here). Unsurprisingly, the ACLU promptly appealed.
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Then in mid-April, the Department of Justice moved for permission from the Idaho Supreme Court to file an amicus brief supporting the ACLU (thanks to Idaho Reports for hosting the motion and other case documents that follow). In support of its motion, Justice cited “the United States’ strong interest in ensuring that indigent criminal defendants receive the full measure of rights the constitution guarantees, as well as its practical expertise in access-to-justice issues.”
Idaho filed a somewhat snarky objection drawing an analogy in which Idaho is to its counties as the United States is to its states. Taking this analogy a step further, Idaho said it would welcome Justice’s briefing on this question: “Would the United States of America be subject to a suit claiming a systemic nationwide failure to provide constitutionally required public defender services in federal court by four persons claiming denial of an entitlement to public defender services in four different States?”
The next day, Justice filed a grown-up response, a short and sweet statement that it was attaching its proposed motion so the court can decide whether it would be helpful or not.
As far as I can tell, the motion is still pending. But Justice’s interest in the case would seem to support my earlier take that the ACLU has a good shot on appeal.
Underfunded Tennessee PDs Turn Away Cases
Speaking of litigation involving chronic underfunding of PD systems, does everyone remember how the Orleans Public Defenders in Louisiana started turning away cases and then found themselves (like Idaho) being sued by the ACLU? Well, last week a PD office in Tennessee followed the Orleans Public Defenders’ lead and announced that it will begin turning away cases. Here’s 21st District Public Defender Vanessa Bryan as quoted in The Tennessean:
“We’re not refusing all cases, we’re just telling the judge each day we’re in court, ‘as of right now I cannot accept this case,'” Bryan said.
“If one lawyer is over (the recommended) load, then you’re running a risk of being incompetent. If your caseload is that high, you can’t give the needed attention to any one individual.”
Let’s hope this move helps direct some additional resources Bryan’s way, without the intermediate step of another ACLU lawsuit. In the meantime, the move shines a light on the impossible choices PDs are asked to make as a result of their constitutional mandate paired with high caseloads and low funding levels.
PDs Working To Address Possible Racial Biases
Finally, there’s plenty of evidence that both procedures and outcomes in the U.S. legal system reflect racial biases — the St. Louis County juvenile justice system is just one particularly egregious exemplar of a broader problem. But while much of the attention is focused on prosecutors, judges, and juries, PDs are increasingly realizing they oughtn’t get a free pass in the racial bias department. The Marshall Project points to San Francisco:
“I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.”
One culprit that’s emerging from this sort of PD self-reflection is the time PDs spend on different cases. With the high caseloads and low funding levels that are endemic to indigent criminal defense, time is a precious commodity that is likely to receive an uneven distribution across a PD’s clients. (I wish every story about PDs didn’t require me to mention high caseloads and low funding levels, but alas! The problem is so endemic it nearly always bears mentioning.) Some PDs are beginning to suspect that their implicit biases are creeping into how they allocate their time.
According to the Marshall Project, data that could shine more light on this possible problem are “scant,” but PDs are nevertheless taking steps to address their possible racial biases. These range from the sorts of self-assessments and trainings discussed above to changes in their advocacy: “Anecdotally, increased awareness has emboldened more public defenders to raise the issue of unconscious bias more explicitly in the courtroom.” And, at least as long as unconscious bias remains a problem, that’s a good thing.
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 [email protected].