In addition to the crushing caseload, many public defenders do not have the money to pay for the information they need to build a case: expert testimony, private mental health evaluations and independent investigators. This puts their clients at a huge disadvantage, Hayne said.
“Law enforcement is at the disposal of the district attorney,” he said, “The entire police force helps them make their case.” By contrast, in Hayne’s Massachusetts office there is one investigator for every 10 attorneys, who each carry between 400 and 1,500 cases.
Greg Apt, who has worked as a public defender in Los Angeles County for the last 20 years, describes a similar situation: “There is an unequal system of resources for public defenders and district attorneys.”
Public defenders in California are paid by the county. “That is all public defenders get,” he said. “District attorneys, on the other hand, get money from the county and the feds, as well as support from the police.”
The lack of funding also means low pay for attorneys, which in turn makes it difficult to recruit quality candidates. In his first year with the public defender’s office in Massachusetts, Hayne earned about $35,000. To put that in context, consider data from the American Bar Association Journal, which notes that the national average salary for a full-time attorney is $63,000. Attorneys employed at law firms earn on average $104,000 per year.
Many young lawyers attracted to this kind of work can’t afford to take these jobs because they have huge student loans. The burden of paying $1,000 a month just to cover the interest on their loans drives away many would-be public defenders, Hayne said. Many states pay public defenders and district attorneys differently despite the fact that they are both public employees, he said.
As a young public defender, Apt took a night job delivering pizzas to pay down his student loans. One day he even delivered a pizza to a client he had represented that morning in court. Apt argues that taking a second job after three grueling years in law school is not going to be attractive to most newly-minted lawyers.
“It makes it really hard to attract good candidates,” he said.
Innovations and solutions
Mark Twain joked that “the law is a system that protects everybody who can afford a good lawyer.” The public defender system needs a dramatic overhaul to meet the constitutional requirements of Gideon v. Wainwright, according to legal scholars. Apt supports equal pay for all publicly employed attorneys as a first step.
The problem could be solved by reducing the number of cases entering the system, according to the ABA Committee on Legal Aid and Indigent Defense. This may seem impractical, but America imprisons people at the highest rate of any industrialized nation, according to the UK-based International Center for Prison Studies. The U.S. incarceration rate is more than 40 percent higher than the next large nation, Russia, and more than six times as high as Canada. The committee suggests that reclassifying certain offenses could substantially reduce the burden on the system without undermining public safety.
Bright encourages young law students to consider working as public defenders for a period of time. "In the midst of indifference, hostility and fear mongering that is going on in the country today, [young public defenders] ... can pursue making good on what the Constitution requires: a full measure of justice for even the poorest and most powerless person accused of a crime, no matter how petty, no matter how heinous."
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