Four out of five criminal defendants can’t afford a lawyer, but in many places, the system promised to them by our state and federal constitutions is chronically in crisis.
By Emma Anderson
In Montana, an all too familiar constitutional crisis is underway. Pretrial defendants who cannot afford a lawyer are languishing behind bars, awaiting the legal representation they are entitled to because public defenders face untenable caseloads. In response, Rhonda Lindquist, who leads the Office of the State Public Defender, was held in contempt of court and fined $8,500 by a county district judge. Lindquist’s overburdened and understaffed office was declining too many cases, the judge found, denying indigent defendants facing criminal charges their constitutional right to legal representation.
Lindquist’s offense is not one of negligence — she has tried to secure additional funding to hire more lawyers so that every indigent defendant’s right to counsel is protected; so far, lawmakers have been utterly unresponsive. Both the judge and the state public defender face an impossible situation: The public defender is ethically obligated to decline new cases if taking those cases would make it impossible for her lawyers to adequately represent their existing clients. And the judge is trying to uphold his oath of office and ensure that indigent defendants are not denied their constitutional right to counsel and railroaded through the system without representation. The state public defender and the judge cannot solve this crisis by battling with each other — the governor and lawmakers need to step in and ensure that 
Montana’s public defense system is constitutional.
While the clash between a judge and state public defender in Montana may be an outlier, it speaks to the broader crisis of public defense. Two reports released in January highlight the severe shortage of public defenders in Oregon and New Mexico, which are short roughly 1,300 and 600 public defenders, respectively. In both states, caseloads are significantly higher than the current systems can constitutionally support. Oregon is overloaded by more than 65,000 cases per year; New Mexico by more than 40,000 cases per year. But this crisis reaches far beyond three states. The ACLU’s docket reflects that public defense systems across the country have long failed to ensure the integrity of state and local convictions and the constitutional rights of people accused of crimes. Last week, the ACLU of Maine filed a case challenging the public defense system in Maine. We are also years into litigation in Missouri and Idaho, and between our national and affiliate offices we have previously litigated these cases in Nevada, California, South Carolina, Washington, Montana, Utah, New York, Pennsylvania, Connecticut, Massachusetts, Michigan, and Louisiana.
To be clear, public defenders are not the problem: At their best, they are the champions of our rights, people who strive to be David when Goliath shows up. The problem is that states refuse to adequately support and properly structure this critical function. Indeed, the overwhelming majority of criminal cases in this country proceed against people who cannot afford to hire their own attorney. Roughly four out of five criminal defendants do not have the means to hire a lawyer and rely on public defenders or court-appointed lawyers. Without adequate public defense, most people in the criminal legal system face the full force of government power with nothing more than illusory rights. The constitutional rights we owe to someone before they are incarcerated simply cannot be vindicated in five minutes, yet that is all defendants in a given courtroom may get with their public defender before their liberty is taken away — if they’re “lucky.” And if you think this doesn’t affect you, your loved ones, or your friends, consider that an estimated one in three Americans will be arrested by the age of 23.
We should all be concerned that in many places around the country the constitutional right to counsel is unrealized. But the right to counsel also protects other constitutional rights. When we don’t protect the right to counsel, we also sacrifice our rights against unreasonable searches and seizures, against excessive bail, to confront one’s accusers, to have prosecutors disclose exculpatory evidence before trial, and many others.
Moreover, as Premal Dharia has observed, crucial policy changes like ending cash bail, increasing diversion programs, ending prosecution of certain drug or minor cases, and using discretion not to seek the death penalty “won’t have nearly the impact they could because a critical piece of the infrastructure is missing: resourced public defenders.”
The judges who adjudicate our public defense lawsuits take an oath of office to support and defend the Constitution; too often we have to turn to them for redress when the right to counsel is under attack. But those judges are not the only actors in the system who must actively take steps to solve this crisis. Lawmakers, prosecutors, and judges in criminal courts must all do a better job ensuring that people are not threatened with incarceration without the benefit of a rigorous defense and access to all the rights our Constitution guarantees. For legislators, this means funding and properly structuring public defense. For prosecutors, this means using their vast discretion to dismiss or divert cases. For criminal court judges, the oath to uphold the Constitution means intervening when they see that an individual defendant’s right to counsel is going unfulfilled and when they see that the system as a whole is failing.
The country’s failure to fulfill the promise of Gideon v. Wainwright — the U.S. Supreme Court decision that established the state’s constitutional obligation to provide counsel to indigent criminal defendants — affects people of all political stripes and has drawn condemnation from politically diverse voices. On the 50th anniversary of Gideon, former Attorney General Eric Holder observed that he “frequently witnessed the devastating consequences of inadequate representation,” including wrongful convictions, unjust sentences, and the corrosion of integrity and trust in the justice system. From a different perspective, the conservative American Legislative Exchange Council adopted a formal resolution recognizing that public defense systems “must be included as an equal and valued partner in the criminal justice system,” and resolving that adequate funding was essential to ensure manageable workloads and competent representation. Similarly, the Koch Industries supports public defense reform and has invested in addressing this crisis.
Without robust public defense, our criminal legal system is doomed to violate people’s rights. Those with the power to ensure the right to counsel is protected have a path forward; they just have to take it.
Emma Andersson , Deputy Director, Criminal Law Reform Project for the ACLU.
Yeah, well written and very true. This is a place where I would argue that the ‘disproportionately effected’ label stands, and it’s economic, and there’s no arguing that there is a wealth imbalance is you want to make it about race there’s no denying that. This is to me one of the biggest holes in our justice system — but oh wow what an expense to adequately represent everyone.