Repairing the System: Getting “Bad Guys” Justice

The Sixth Amendment guarantees all citizens the right to counsel, free of charge, if they are facing incarceration, in order for both the plaintiff and defendant to have an equal trial. However, recently the public defender system has faced issues that result in less-than-fair representation of clients. States, such as Delaware, have attempted to address the issues and act proactively, unlike several other states; the Chief Public Defender, Brendan O’Neill, and Justices of the Delaware Supreme Court have taken steps such as setting up commissions and reaching out to private law firms in order to confront issues. There are not enough lawyers, investigators, etc. in most Public Defender Offices to handle the rigorous caseloads along with the demanding schedules incurred by the number of cases; funding seems to be the biggest hindrance to restoring the System as it should be. Even though elite private law firms are expected to offer a great amount of expertise and focus to a case, the lawyers appointed to indigent clients should at least be able to spend a considerable amount of time on a case to ensure that their client is receiving sufficient help from the government. The restorative process taking place in Delaware is similar to the types of restorations stated in the book Repair by Elizabeth Spelman, which all establish the issue and how to fix the problem, or at least move towards improvement. Ironically the focus of this repair is on offenders, rather than the victims, which are at the base of nearly all arguments made by Spelman.

The criminal justice system should be equal for all people, even offenders, which requires the public defender system to ensure that people who cannot afford a private lawyer are still able to have a fair trial. The Sixth Amendment guaranteed the right to a lawyer if a citizen is not able to pay; however, recently the system has not offered a fair trial to some defendants for multiple reasons, even if the lawyers are attempting to do their job to the best of their ability. Spelman focuses on the restorative process, in relation to the criminal justice system, in Repair:

True, the current criminal justice system is not without its own reparative moments: … it can be described untendentiously as involving repair. What’s wrong, say the proponents of restorative justice, is that the criminal justice system fails to identify important harms — to locate all the places where repair work needs to be done — and doesn’t know how to fix the harms it does identify.(Spelman 54).

Here, Spelman hits the nail on the head when generalizing about public defender systems across the nation; no one knows exactly how much money is needed or where specifically the money should go to help as much as possible. While it is hard to identify every area in which there is an issue, the Supreme Court of Delaware has made an attempt recently to rectify issues.

Justice Jack B. Jacobs, of the Delaware Supreme Court, created a committee in late 2013 in order to identify the underlying issues of the public defender system. The Committee, known as the Access to Justice Commission, works under two-year appointments to address the issues over a long period. The Commission is obligated to focus on these issues:

(i) whether resources devoted to providing legal services to the poor are effectively deployed, whether there would be gaps in funding regardless of whether resources are optimally deployed, and creative means to close any gaps; (ii) the difficulties that confront lawyers who wish to provide legal services to clients of ordinary means and to do so in a manner that enables them to run their law firms in a profitable, ethical and sane manner; (iii) means to increase the pool of qualified legal advisors to help litigants of limited means, such as increasing pro bono service by in-house counsel and by members of the bar who are not litigators, and considering whether forms of limited representation should be authorized in critical areas of need; (iv) rationalizing and coordinating the efforts of the various courts in helping pro se litigants, including by considering broadening the role of the law libraries to make them a central resource in the provision of services to pro se litigants in all courts; and (v) identifying the causes of the stark disparity between the percentage of Delawareans who are black and the percentage of those incarcerated in Delaware’s prisons who are black, and recommending measures to ensure that this disparity does not result from racial discrimination and to reduce any inequities that are not justified as a matter of sound criminal justice policy. (Supreme Court of Delaware Amended Order).

The aforementioned tasks reveal that there are many unknown factors of the legal system, which supports Spelman’s claim that the justice system “fails to identify important harms,” although, Delaware challenges her claim that the criminal justice system “doesn’t know how to fix the harms” by enacting a Commission which makes this task its mission. These issues that the committee looks into are a prime example of steps towards repair. Spelman made a point of restorative justice throughout her text, but while that restorative justice focuses on the offender reconciling with the community and victim(s), the justice observed here focuses on reconciling the trust of the defendant(s) with the current criminal justice system.

Chief Public Defender, Brendan O’Neill

Many members of the public have the perception that the Public Defender’s Office only “gets the bad guy off the hook” which presents a dually difficult task: being a robin hood who sufficiently helps the indigent while requiring the respect of the public and the law. I interviewed the Chief Public Defender of Delaware, Brendan O’Neill, who acknowledged the bad connotation:

We do try to get bad guys off the hook. However, that is not all we do…We defend all our clients vigorously, whether they are perceived as being bad guys or not. Every accused person has the right to the assistance of an effective lawyer. We strive to give every client the best possible defense. That is our mission.

Mr. O’Neill is able to back up his words with his actions — He had a major part in the passing of Senate Bill 47, in Delaware, which helped establish new Offices and tactics, in turn reducing the insurmountable workload pushed onto the Public Defender’s Office. Now, even private law firms are being (strongly) encouraged by State and Federal courts to help assist the public by going to seminars which advise private lawyers on how to defend indigent clients. The work is pro bono (free) for the clients per usual as these lawyers are quasi public defenders.

While Delaware’s criminal justice system is still broken to an extent, it cannot be labeled shortsighted, unlike many other states across the country. While states help fund district attorney offices much more than public defenders because state’s laws and/or codes are at stake, budget cuts to the public defender system hurt the country more than one would tend to believe; the unproportional incarceration rate of minorities, and the ongoing drug war can be tied back to fair representation of minorities. A lack of funding to the System results in low salaries, which deters some prospective lawyers, and results in a high amount of fresh lawyers who are not privy to all of their responsibilities, or at least not able to manage all of them. As noted by one public defender in New Orleans Louisiana, “…the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges” and the next year she worked on double the caseload that was recommended in 2014 (Peng).

Some new public defenders are not entirely aware of what their job consists of, but that should not be surprising considering part of their job is to balance multiple cases which require meeting with defendants multiple times before trial. One investigator in New Orleans has so many cases to handle that it is very hard to obtain security/surveillance footage within a certain time period before it is erased (Peng). Lawyers in the Public Defender’s Office may not learn all of the fundamentals quickly enough because numerous cases in one week result in lawyers not being able to question everyone in a case or prepare for the questioning to begin with, let alone a trial. It is hard for lawyers to understand all of the fundamentals, though, when the number of cases per representative continues to rise, despite the nationally recognized standard for how many cases each public defender should take. Recently, the standard has fallen by the wayside due to caseloads, as noted by a public defender in Tennessee: “If you apply those standards to the number of cases we handled in fiscal year ’13, we were 22 lawyers short in our office to be able to handle the workload that we have” (Cohen). By the same token, another public defender in Nashville also spoke on the issue, while speaking to the judge in a courtroom: “Our office, quite frankly lacks the resources to defend a death penalty case” (Cohen). While, the harm can be identified in this situation, and the solution can be fixed, as opposed to Spelman’s notion, the means for this repair are absent. The integrity of the public defender system needs to be reaffirmed, but the process cannot be completed in one fell swoop.

The major outcry from Public Defender Offices across the nation is the lack of funding incurred by lousy state budgets, which take a large amount of effort to repair. Funding would greatly help the system and citizens who are fed up with unfair outcomes and typical politics. The numbers, reported by the Guardian, are shocking: state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200 billion spent on criminal justice by states and local government every year (Laughland). There are many instances in which governors are moving to cut the System’s budget, which hurts states more than originally understood. One prime example is Missouri whose governor chose more staff rather than more funding for public defenders, the result: the office lost thirty members which was compiled by a twelve percent raise in the number of cases (Laughland).

Nevertheless, there is hope for states that follow Delaware’s trend; in 2015, Mr. O’Neill, and his Office was granted over twenty million to help. The increased budget allowed the Office to hire more lawyers and reduce the caseload per each lawyer; however, these funds, while greatly beneficial, were still not enough to completely rectify the situation. The additional lawyers hired are not full-time employees i.e. they do not have benefits or vacation time and can only work up to 29.75 hours per week. This is the result of allocating money; most of it went to an Office (Office of Conflicts Counsel) that deals with murder trials and takes indigent clients who have conflicts within the Public Defender Office. Mr. O’Neill understands where the money is most appreciated and/or necessary and it is his duty to ensure a future for the System:

…it is part of my job to make sure that the funding authorities understand and meet the state’s Constitutional obligation to fund indigent defense services. To the extent, that the state underfunds indigent defense, it is a result of state resources being too limited.

Overall, Delaware continues to take necessary steps to fix the System as it is now through money and outreach.

Even though “Plea bargaining is the lifeblood of every sizable criminal justice system in the country,” according to Mr. O’Neill, it is still the result of underfunding and a lack of lawyers because the “sheer volume of cases create a marketplace for [plea bargains].”

A plea bargain eliminates a large amount of trial time by simply admitting (partial) guilt in a case and allowing both the District Attorney and Public Defender to move on to other cases. While this is efficient, it hurts defendants because it encourages them to admit guilt even if they were innocent. Ninety percent of criminal defendants qualify as indigent (Laughland), who are then encouraged to use a plea bargain, in turn increasing their chance of being reincarcerated and indirectly adding to the Public Defender’s Office caseload. Even with the addition of new public defenders, the Delaware Public Defender’s Office is still over the standard caseload, according to Mr. O’Neill and the number of plea bargains has not changed. Overall, there is still much room for improvement in Delaware’s Public Defender’s Office, but it is evident that it has and continues to take necessary steps toward improvement.

In the end, a lack of funding, ignorance, and caseloads have forced unprecedented pressure on public servants who deserve adequate resources. While the ignorance of governors, such as the governor of Missouri, and the low budgets for Public Defender Offices across the nation fail at offering hope for change, Delaware has taken a proactive stance to these issues from the federal government down to private law firms who are willing to provide assistance. Chief Public Defender O’Neill has acted admirably through his efforts to restore the system by identifying and slowly fixing the issues, as opposed to Spelman’s general view of the criminal justice system. Lawyers and investigators of the public defender system would still be overworked even if the resources were available. In order to solve the issue, there has to be substantially more funding for offices across the country in order to ensure more lawyers, less cases per public defender and more time per each case, which would help move closer to the amount of preparation allocated by private firms, and less plea bargains.


Firstly, I would like to thank the members in my group — Amelia Abobo, Jillian Dean, and Olivia Daniels — for helping me in multiple areas that needed improvement. I would also like to thank my Graduate Teaching Assistant, Frank, and my english professor, Professor Harris, for helping me center the focus of this work when I was not sure whether or not I could pursue it. Finally, I would like to acknowledge my high school english teachers, because I would not be nearly as strong as a writer without their help and support.

Works Cited

Cohen, Andrew. “This Is the One Area Where America Really Needs More Lawyers.” The Week — All You Need to Know about Everything That Matters. The Week, 22 Jan. 2014. Web. 6 Nov. 2016.

Laughland, Oliver, and Laurence Mathieu-Léger. “The Human Toll of America’s Public Defender Crisis.” The Guardian. Guardian News and Media, 07 Sept. 2016. Web. 6 Nov. 2016.

Peng, Tina. “I’m a Public Defender. It’s Impossible for Me to Do a Good Job Representing My Clients.” Washington Post. The Washington Post, 3 Sept. 2015. Web. 6 Nov. 2016.

Spelman, Elizabeth V. Repair: The Impulse to Restore in a Fragile World. Boston: Beacon, 2002. 54. Print.

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