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The State of Public Defense and Indifference to the Indigent

By Jason Searle, 1L
March 29, 2016

There is a tendency to think of human rights violations as an international problem, said Professor Eve Brensike Primus​​, ’01, during a recent talk to Michigan Law students. But “I’m here to tell you human rights are a domestic problem in our criminal justice system,” Primus said during her presentation about the crisis in indigent defense.

Primus started her career as a clerk for the Hon. Stephen Reinhardt on the Ninth Circuit Court of Appeals before becoming a Maryland public defender. She began her career handling a heavy load of misdemeanor cases—at that time, attorneys in Maryland often handled more than 1,000 cases a year. Her days started before 8 a.m., as she rushed from courtroom to courtroom with a stack of 15-20 cases under her arm, trying to meet with prosecutors before the floodgates opened and the public rushed into the courthouse at 8:30 a.m.

Despite the hectic environment, Primus made it a priority to meet with clients, listen to them, and represent them in the best way possible. Giving this much attention to each case was a challenge, and it often led Primus to the jail and the streets to track down clients. Many overworked, overburdened, and underfunded indigent defense attorneys across the nation are unable even to meet with clients in advance of trial, let alone perform any investigation or do any legal research.

“It is a zoo,” she said. Public defenders face enormous pressure, including from judges, who, Primus recalled, would chastise her for not being in their courtroom immediately when they called for her. In a system in which the volume of cases is too high for public defenders to handle, defenders are pressured to process people through the system, she said.

There are three ways in the U.S. criminal justice system that indigent clients may be represented. One way is with a public defender’s office, but not all jurisdictions will fund such offices. This realization leads many jurisdictions to a second option, a panel system, under which lawyers receive an hourly rate for up to a limited number of hours to represent an indigent client—incentivizing lawyers to rush cases. Finally, there are contract systems, in which a jurisdiction finds a firm or a group of lawyers, and gives all indigent cases to the group bidding the lowest contract fee.

“This is how we do indigent defense in this country. And it means poor people often get bad representation,” Primus said. Such a system, she said, is dehumanizing. Countless studies support the connection between the volume of cases and subpar representation. One study in a New Orleans parish found that public defenders there were forced to handle 19,000 cases a year. By the math, that meant each case was given an average of seven minutes of attention. “What can you do with seven minutes?” Primus said.

Primus closed her talk with encouragement, and acknowledged that the flaws in the system are no reason to give up hope. She suggested a couple of ways to start fixing the problem: by talking about the issue, since many people are unaware of the state of indigent defense representation in this country; and for the attorneys-to-be in the audience to consider taking on indigent clients’ cases after graduation. She asked the audience to consider what would happen if every alumnus or alumna of a top law school took on just one indigent client’s case, assuring them that the impact would be significant.

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