A Better Defense For Poor People Accused Of Crimes Is Necessary

By Noah Berlatsky

What can the federal government do to address mass incarceration directly? The painful answer is: not a whole lot. Mass incarceration is a nationwide problem that seems like it calls for nationwide solutions. But the truth is that the president and Congress can do little to address the problem. There are only about 211,000 people in federal prison, compared to 646,000 in local jails and 1.35 million in state prisons. This is why Bernie Sanders’ promise to end mass incarceration by the end of his first term is a fantasy. Even if the president pardoned every single person in federal custody, the U.S. would still have more people in prison than any other country in the world, including ones like China, with much larger populations.

Direct action at the federal level isn’t going to do much to reduce prison populations. But presidents and Congress can have important indirect influence. In particular, they can take seriously the national, constitutional guarantee of a vigorous defense.

In theory, Gideon v. Wainwright in 1963 was supposed to guarantee every defendant a lawyer, regardless of ability to pay. In practice, that guarantee has often been honored in the breach, and has disintegrated in recent years as states and local governments have faced budget shortfalls. When money is tight, funds for poor people accused of crimes — funds for people, in other words, with little if any political power — are cut first, and most deeply.

In Louisiana, the New Orleans public defenders office started turning away clients in November because of lack of funds and an inability to represent defendants adequately. In an ongoing 2012 case, public defenders in Luzerne County, Pennsylvania, sued the state for failing to provide sufficient funds for the representation of indigent defendants. These are dramatic examples of a breakdown in the court system, but they’re not isolated. According to John Pfaff, a professor of law at Fordham University who responded to me by email, eight of 10 felony defendants need a state appointed attorney. But states altogether only spend $2.3 billion on indigent defense. That’s only 1% of criminal justice spending, and 2.5 times less than what states spend on prosecutors.

In a federal government budget of $3.7 trillion, $2 billion would barely be noticed. Congress could easily double the amount spent on indigent defense — or even triple it. Pfaff suggests distributing $4 billion in matching grants, providing two dollars for every dollar of state spending. In comparison, the United States is currently proposing spending $4 billion on self-driving cars. Self-driving cars would obviously be cool, and there’s no reason the government shouldn’t fund cool things. But there is no constitutional requirement for self-driving cars. There is one for indigent defense.

Indigent defense also could get bipartisan political support. “The appeal to Democrats is clear,” Pfaff told me. Indigent defense “targets poverty, and to the extent poverty and race are correlated, it targets some (though by no means all) of the racial biases in criminal justice as well.” For Republicans concerned about state overreach, “funding indigent defense could help make sure that the poor, too, were capable of resisting state pressure — in a setting where the state is arguably at its most powerful.”

Perhaps even more importantly, for all politicians, funding indigent defense allows politicians to move on criminal justice reform without the threat of being demagogued. Politicians are petrified that if they shorten sentences, or release prisoners, one of those prisoners will go on to commit a crime that will show up in negative ads — as Willie Horton did in the 1988 presidential campaign. This presumably is the logic behind President Obama’s historically cautious pardon policy; the president has granted fewer pardons than any of his predecessors since John Adams. If you grant a pardon, someone somewhere may use it against you. It’s safer, from a politician’s viewpoint, to punish someone unjustly than it is to be merciful and risk looking weak.

But this is not a concern with indigent defense, where prison time can be cut on the front end. Poor people with adequate representation will be able to push for better plea bargains, with shorter sentences. They’ll be able to get charges tossed out or reduced. And of course, innocent defendants will have a better chance to escape conviction for the crimes they didn’t commit.

How much would a strong indigent defense reduce prison populations? It’s difficult to know for certain, though some evidence is suggestive. There are many reported cases of defendants spending months or even years in jail waiting for court appointed lawyers; speedy, well-funded public defenders could lower jail populations substantially and immediately.

In terms of state prisons, a 2011 RAND working paper found that public defenders, whose job was to defend the indigent, were much more effective than court-appointed counsel, who tended not to prepare cases as thoroughly. In murder cases between 1994 and 2005, public defenders in Philadelphia reduced murder convictions by 19%, reduced life sentences by 62%, and reduced overall time served in prison by 24%.

These findings show, at the least, that the availability and competence of lawyers for the indigent can have a substantial effect on the amount of time the poor spend in prison. Providing counsel to the accused is a basic right. But it’s also one of the most substantive things that the federal government can do to reduce the number of people flowing into the prison system, and the amount of time they spend there.

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Lead image: flickr/Matthias Muller