By John Masson
Given that 80 percent of criminal defendants qualify for public defenders, one might expect that 100 percent of states would adequately fund their public defender programs.
Except that, as Prof. Eve Brensike Primus, '01, told Michigan Law students during a recent lunch talk, states don't do that. Some states rely on contract attorneys. Some states fund public defenders on a statewide basis. Still others have judges empowered to simply point the finger at some hapless attorney in the gallery and say "You’re it!"
" 'But Your Honor,' " Prof. Brensike Primus said, pretending to quote that ill-chosen attorney, " 'I practice real estate law!' "
Prof. Brensike Primus suggested a combination of ways to chip away at the problem of inadequate representation. First, decriminalizing some offenses or making some felonies misdemeanors would ease the caseload. Second, the judiciary—specifically, the federal judiciary—needs to enforce a higher standard of effective representation, in part through meaningful structural reform of habeas corpus law. Under most current standards, Prof. Brensike Primus said, it takes too long before someone who is convicted gets a chance to open up the record of his initial trial and prove that his original attorney was ineffective.
"It's the federal courts that have to do it; there are too many elected judges in states," she said. Feeding the problem is the disparities between states—and even within states—on funding public defenders. Many states operate like Michigan does, with county-based systems that lead to drastic differences in the quality of defense representation. Those counties use a patchwork of methods to pay their public defenders.
But even in states that do have a centralized system, public defender caseloads are usually extreme. And Prof. Brensike Primus ought to know: she held the job herself in Montgomery County, Md., and later at the appellate level in Maryland.
"On any given day, I could have from six to 30 cases. I averaged about 20," said Prof. Brensike Primus. "You can't give us people on an assembly line into prison and expect us to properly represent them."
Despite its many flaws, the statewide public defender system is still better than some of its rivals, she said. A flat-fee contract attorney system, for example, presents large ethical dilemmas of its own.
"They have very little financial incentive to put time into these cases," she said of contract attorneys. And there's often no provision to cover such extra costs as investigators and expert witnesses. "So what you get is this train wreck of representation."
In some jurisdictions, she said, the funding models are simply "insane." Consider New Orleans, which used to fund its public defender system through parking tickets.
"In a month where they wrote enough parking tickets, you could get an expert," she noted drily.
But the problem goes beyond money, Prof. Brensike Primus said after her presentation. She recalls examining one small Tennessee county whose six public defenders handled more than 10,000 misdemeanor cases in a year—close to 1,600 per attorney.
"This is just un-doable," she said. "But it was going to cost in excess of a million dollars just to fund enough lawyers in that one office, in that one county, in that one state, to get those caseloads down to a manageable level. We don't have that kind of money to fix it."
The bottom line?
"When lawyers don't have time to meet with their defendants," she said, "that isn't effective assistance."
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