Patrick Smith
Defendant Colton Louder and public defender Lisa Crawford sit in front of Judge Fred Howard at the 4th District Judicial Court, Tuesday, Nov.17, 2009. Louder was charged with the murder of his uncle, Jeffery Ackerman, in Pleasant Grove on Feb. 27, 2009. Some argue there is a systematic failure to provide constitutionally required legal counsel for poor defendants in the United States.

In 1993 Christopher Lee Price was convicted of the robbery-murder of Alabama minister William Lynn. For his crime Price was sentence to death by lethal injection.

For the last 20 years a team lead by Washington, D.C., lawyer Douglas Hallward-Driemeier has been navigating the legal system with the goal of overturning the punishment decreed for Price. Years of work came to an end earlier this month when the Supreme Court announced it would not be reviewing the case.

The team does not dispute that Price is guilty. The issue is whether Price was adequately represented during sentencing by his court-appointed public defender. Hallward-Driemeier asserts that Price's constitutional right to legal counsel was violated when his attorney failed to provide the court details about Price’s background, his history as a victim of child abuse and his mental health problems. This information could have led to a reduced sentence.

The timing of the Court’s decision is ironic. It came just two weeks before the 50th anniversary of the landmark Supreme Court case Gideon v. Wainwright, which affirmed the right to adequate counsel regardless of ability to pay. Price’s appeal stated that he received inadequate representation because he couldn’t afford a decent lawyer.

Price’s supporters argue his case represents a systematic failure to provide constitutionally-required legal counsel for poor defendants. Legal scholars and judges bemoan the lack of equity in the system.

“For those who can afford legal services, we have a top-notch judicial system,” said Texas Supreme Court Chief Justice Wallace B. Jefferson in a recent speech on the anniversary of Gideon. “A larger swath of litigation exists in which contestants lack wealth, insurance is absent and public funding is not available. Some of our most essential rights — those involving families, homes and livelihoods — are the least protected."

The driving factor behind this injustice is the fact that American incarceration rates have increased by 800 percent in the last 40 years, says Stephen Bright, president and senior counsel for the Southern Center for Human Rights in Atlanta. Many of those brought to court are poor and states have not proportionately increased funding for legal defense.

Even in states where there is money for public defense programs, the salaries are so low compared to prosecutors and private defense attorneys that many young law school graduates say they can’t afford to do the work. Scholars, judges and lawyers agree that new ways to provide legal defense to the poor are needed. It’s the only way to see the promise of Gideon fulfilled, Bright says.


The problem isn’t that public defenders don’t want to provide the best defense for their clients; in many cases, they simply don’t have the resources to do it. “Across the country ... indigent defense providers are underfunded and understaffed,” said U.S. Attorney General Eric Holder in a February speech at the American Bar Association’s National Summit on Indigent Defense. “When legal representation is available to the poor, it is rendered less effective by insufficient resources [and] overwhelming caseloads."

Public defenders can carry as many as 500 active felony cases at a time and as many as 2,225 misdemeanor cases, according to a 2009 report by the Constitution Project, a Washington, D.C.-based nonprofit think tank. The American Bar Association recommends caseloads of no more than 150 active felony cases or 400 misdemeanor cases.

Caseloads like those documented by the Constitution Project aren’t atypical, said Josh Hayne, an attorney who worked for two years as a public defender in Massachusetts. As a young lawyer he had 400 to 1,000 cases at any given time. When asked if his clients received good representation Hayne doesn’t hesitate: “We could do more for [clients] if we had fewer cases. When it comes down to it, you always feel like there were more things you should have done.”

Case support

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.”

Attorney pay

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."