Indigent defense - what can be done
Indigent defense funding is not discretionary, to be set aside when times are hard economically - if there is no funding for indigent defense, there can be no prosecutions. South Carolina is not alone in funding problems, and our public defenders can learn from what other defenders have done and are doing around the country, in defiance of the politics that govern them.
A recent article in the New York Times noted that:
Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point. . . .
“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.
The public defender's office in Miami Dade County obtained a ruling from a judge that they could refuse to represent those defendants charged with lesser felonies, in an attempt to provide an effective defense to those charged with the more serious crimes.
In Kentucky the state public advocate has sued for the right to turn down cases that defenders could not ethically take on. (Why sue for permission to do something that is already constitutionally and ethically required?) In Missouri, public defenders have begun to refuse to accept misdemeanor cases that would not result in incarceration, and public defenders in Tennessee, Minnesota, Maryland, and Arizona have either filed lawsuits or begun to turn down cases.
I agree with Andrew Perlman at Legal Ethics Forum, who has said:
It's nice to see the issue getting some high profile media attention, but I fear that the problem will only get resolved if public defenders stop taking cases that they don't have enough time or resources to handle ethically. Unless the system comes to a halt, it seems unlikely to me that state legislatures will make this issue a priority.
Santa Barbara, California public defenders are beginning to refuse cases. In 2005, appointed attorneys in Massachusetts refused to accept cases following an announcement that the Committee for Public Counsel Services (CPCS) had run out of money due to budget cuts:
Lawyers in Taunton District Court who represent indigent defendants joined a grass roots labor strike yesterday, refusing to accept new cases until the state pays them.Of the 160 private lawyers in Bristol County who accept court-appointed
clients, more than a third informed the state committee that hires them
that they will no longer take cases, said Gerlinde Lowe, an administrator
for the Committee for Public Counsel Services."I'm not going to work for nothing," said city attorney Thomas E. Workman
Jr.Workman said CPCS posted a letter on July 18 announcing it had run out of
money because of Gov. Mitt Romney's budget cuts, and would no longer accept
their bills. In response, lawyers in New Bedford, Wareham, Dudley and now
Taunton are refusing to accept court-appointed cases, he said.
So, what can be done? First of all, appointed counsel should refuse to accept cases until funding is made available. If it can be done without prejudice to the client, appointed counsel should refuse to work on current appointed cases, and file motions asking the court to halt prosecutions and release these individuals from jail until funding becomes available. Beyond this, public defenders need to step up to the plate and demand that they be given the means to provide an effective defense for their clients, even if this means refusing to accept new cases once their workload has grown past ethical limits.
Related posts:
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?
