I have mentioned occasionally my friend Jan, who spent decades as a public defender in one of America’s largest cities before she retired a couple of years ago. Public defenders are some of the only true heroes in our society because, against all the strongest forces in our society and our politics, they keep alive our failing belief in equality under the law. The biggest part of that belief is that poor people deserve the same chance in the courthouse that a Trump would, should that blessed event ever come to pass. Now comes a study from the good folks at the Brennan Center about how, all over the country, that system, and that commitment to equal justice with it, has crumbled. This is the kind of thing that happens.

Shondel Church spent over 40 days in a Missouri jail — accused of stealing a generator and toolbox — before even seeing his public defender. His lawyer thought they could win the case but explained that his high caseload would prevent them from going to trial for four to six months. Church sat in jail for 125 days, for which Missouri charged him $2,600, before pleading guilty in order to return to his life and family. While Missouri is among the worst examples, indigent defense systems across the country have been chronically under-resourced for decades.

The 1963 Gideon v. Wainwright decision from the Supreme Court has evolved into one of the most grotesquely undermined decisions of that era, its initial promise shredded by penurious state legislatures and three decades of tough-on-crime political rhetoric. (These phenomena, it should be noted, were decidedly bipartisan ones.) Today, as the report makes plain, the situation for indigent defendants—and their lawyers—is somewhere past dire.

Until recently in New Orleans, single public defenders were forced to handle upward of 19,000 misdemeanor cases in a year — translating into seven minutes per client.8 Research has shown that only 27 percent of county-based and 21 percent of state-based public defender offices have enough attorneys to adequately handle their caseloads...In Rhode Island, for example, the study determined that the Rhode Island public defender system only has capacity to handle 36 percent of its current case- load while still providing reasonably effective representation.82 In Louisiana, the system has capacity to handle only 21 percent of its current caseload and is understaffed by an astounding 1,406 full-time attorneys.8 Rather than relying on uninformed misconceptions about the respective roles and importance of defenders and prosecutors, these studies provide an evidence-based rationale for setting necessary funding levels. But deter- mining what is a reasonable workload standard is far easier than enforcing it in jurisdictions that are reticent to increase indigent defense funding. As of 2013, only five states in the nation had any binding statewide workload standards,84 and only Massachusetts has workload limits that are significantly lower than the NAC standards.

The balance of power between local prosecutors and local public defenders has become ludicrous in every area that can be measure by money—from salaries to the resources available to each side to do their respective jobs.

A survey of 29 statewide indigent defense programs in 2013 found that six states had fewer than 10 full-time investigators on staff in the entire state and 19 states had fewer than 10 paralegals.95 As to be expected, things are even worse in county-based systems. A 2007 survey found that 40 percent of all county-based offices and 87 percent of small offices (those receiving less than 1,000 cases per year) employed no investigators whatsoever. Only 7 percent of county-based offices nationwide met the accepted professional guidelines for investiga- tor-to-attorney ratio — a statistic that understates the scope of the problem given the widespread understaffing of attorneys...A nationwide Bureau of Justice Statistics survey of prosecutor’s offices found a total of 7,311 full-time investigators, compared with just 2,473 full-time investigators in state-adminis- tered indigent defense systems and county-based public defender offices. While it is true that prosecutors carry the burden of proof and must investigate certain cases that are ultimately never charged, they also have the enormous benefit of police resources to conduct investiga- tions, greater access to police records, and government-funded forensic labs.

And the result? Pretty much what you’d expect.

Wrongful convictions are also more likely when public defenders are under-resourced. Since 1989, the University of Michigan National Registry of Exonerations has docu- mented 2,468 exonerations to date amounting to 21,726 years of wrongful incarceration,29 though the actual number of wrongful convictions is surely much higher.30As the National Right to Counsel Committee reported in 2009, “The causes of wrongful conviction, such as mistaken eyewitness identifications, faulty scientific evidence, and police perjury, are all matters that competent defense lawyers can address.”

Theoretically, this is one of those things of which the United States should be insufferably proud—that we allow poor people to stand before the bar equally with rich people no matter how gross their offenses are. If the alleged bipartisan push for “criminal-justice reform” actually exists, ameliorating the inequality in the judicial system should be at the top of the list. As the report states, I mean, the basic principle—Equal Justice Under Law—is carved right there into the lintel of the Supreme Court itself. If you can’t believe your mighty marble facades, what is there left in which to have any faith at all?

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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