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Being innocent is not always enough

February 29, 2012
By George J. Bryjak

As any observer of television dramas such as "Law & Order" knows, defense attorneys represent defendants at all critical stages of criminal proceedings.

With the Gideon v. Wainwright (unanimous) decision of 1963, the Supreme Court ruled that individuals charged with felony criminal offenses who cannot afford a lawyer must be provided with legal counsel. (In a 1972 decision, this was expanded to include defendants charged with misdemeanor offenses that carry a jail sentence). Justice Hugo Black stated, "Reason and reflection require us to recognize that in our ... system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided. ... Lawyers in criminal courts are necessities, not luxuries."

In the aftermath of this landmark decision, a number of issues had to be addressed, including: Who would defend the poor? How would a program to provide legal aid to indigent individuals be coordinated and administered? Who would pay for this program? These were important questions inasmuch as between 60 to 90 percent of all criminal cases (depending on the jurisdiction) involve indigent defendants.

Answers to these queries were provided in large measure by way of a "public defender" system that currently exists at both the county and state level in 42 states. Public defenders are especially numerous in big cities, where these attorneys have heavy criminal caseloads. In 28 states, public defender systems are fully funded by the government, and most have some form of oversight commission. In a typical year, two of three felony defendants in federal courts and four of five felony defendants in large state courts are represented by public defenders or "assigned counsel." (The latter are attorneys appointed from a list of private bar association members who accept cases on a judge-by-judge, court-by-court, or case-by-case basis.)

Defendants represented by public defenders, as well as critics of the public defender system, typically cite three problems with this system. First, because attorneys are usually assigned on a "Who gets the next case?" basis, defendants cannot choose their legal advocates. Second, the typical big-city public defender works in an office wherein defendants are likely to be assigned a different attorney at each stage of pretrial proceedings. Not only does this undermine the confidence a defendant has in his or her legal representation, but every time a file passes from one attorney to another, there is a chance that some information will be misinterpreted or lost.

The final area of concern is that public defender caseloads are typically very high, especially in large cities. The average number of felony cases handled annually by public defenders in Miami-Dade County increased from 367 in 2005 to almost 500 in 2008, while caseloads for attorneys working misdemeanor offenses in that three-year period rose from 1,380 to 2,225. Every attorney at the New York City Legal Aid society handles an average of 592 cases per year, working approximately 103 at any one time. Staggering caseloads are all the more problematic as a consequence of limited resources. A 2010 Department of Justice report stated that public defender offices across the country "employed fewer than the recommended number of support staff, such as paralegals, investigators, indigent screeners, and clerical staff."

With so many defendants to represent, public defenders can do little more than "meet 'em and plead 'em" - that is, plea bargain as many cases as possible and move on to the next group of individuals accused of committing crimes. Public defenders often refer to routine plea bargaining as "assembly line justice." Overburdened defense attorneys in Michigan talk openly about "McJustice," relating the pace of their work to that of fast-food employees.

Even in rural counties, public defenders can have high caseloads. In a recent Watertown Daily Times article, Stephen D. Button, St. Lawrence County's chief assistant public defender, stated that most of the attorneys in his office carry more than 400 cases annually. Essex County Public Defender Brandon Boutelle informed me that in 2010, his two-person office handled 975 cases: Approximately 25 percent were felonies and 75 percent misdemeanors and violations. A third attorney was added in August 2011, a year Essex County public defenders worked 870 cases. As a consequence of time and resources constraints, only one felony case was taken to trial in 2011.

Numerous commentators have observed that justice is hardly served if defendants have lawyers whose primary role (out of necessity) is plea bargaining as opposed to marshaling a strong defense (at a criminal trial) on their behalf. Innocent defendants may feel pressure to plead guilty to a lesser charge fearing that representation by an overworked public defender at a criminal trial would result in a conviction of a more serious crime.

A state of Pennsylvania report examining public defenders concluded that in many counties, even "the most brilliant and accomplished lawyer could not provide adequate representation because he or she would not have the time and resources needed to mount a constitutionally adequate defense." Norman Lefstein of the Indiana University School of Law notes that "the quality of public defenders around the country is absolutely deteriorating. ... As the loads worsen, the more experienced lawyers leave. But the cases continue to come in."

According to law professor Barry Scheck, "Nothing guarantees the conviction of an innocent person faster than a lawyer who is incompetent or lacks resources. It's terribly risky to be poor, or even middle-class, and unable to afford a good attorney." Supreme Court Justice Ruth Bader Ginsburg stated that she has "yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial." A 2008 American Bar Association report stated, "The number of jurisdictions with death-sentenced prisoners who lack adequate legal representation is growing at an alarming rate. There are currently 3,300 persons on death row in the United States, and 99.5 percent of them are indigent."

A 2004 ABA report, "Gideon's Broken Promise: America's Continuing Quest for Equal Justice," concluded, "Forty years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction." Based on interviews with 353 criminal court judges, prosecutors and public defenders throughout the nation, researchers concluded that over a 10-year period, almost 100,000 individuals were wrongfully convicted of "Index" offenses (murder, robbery, rape, aggravated assault, auto theft, burglary and larceny-theft) they did not commit. This figure does not include people wrongfully convicted of dozens of non-"Index" offenses.

If the number of wrongful convictions is to be curtailed and the Pledge of Allegiance ideal of "justice for all" realized, the caseloads of public defenders must be significantly reduced by way of dramatically increasing the number of these attorneys (as well as the resources they require) in criminal court jurisdictions across the country.


George J. Bryjak lives in Bloomingdale, retired after 24 years of teaching sociology as a professor at the University of San Diego.



Argersinger v. Hamlin (accessed 2012) Case Briefs,

"Adequately Fund Public Defenders" (Jan. 13, 2012) The Scranton Times-Tribune,

Boutelle, B. (Feb. 6, 2011) Essex County Public Defender's Office, private correspondence

Eckholm, E. (Nov. 9, 2008) "Citing Workload, Public Lawyers Reject New Cases" The New York Times,

Ellen, M. (Oct. 20, 2011) "St. Lawrence County Public Defender Mary Rain Resigns," Watertown Daily Times,

Eligon, J. (April 6, 2009) "State Law to Cap Public Defender's Caseloads, but Only in the City," The New York Times,

"Gideon's Broken Promise: America's Continuing Quest for Equal Justice" (2004) American Bar Association, Chicago

Gideon v. Wainwright (accessed 2012) The Legal Dictionary,

Harlow, C. (2000) Defense Counsel in Criminal Cases, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs

Huff, R., A. Rattner, and E. Sagarin (1997) "Convicted but Innocent: Wrongful Convictions and Public Policy," In R.G. Culbertson and R.A. Weisheit (Eds) "Order Under Law: Reading in Criminal Justice" (pp. 253-2765) Prospect Heights, Ill.: Waveland Press

"Is Poor Representation by Public Defense Attorneys a Widespread Problem in Capital Cases?" (accessed 2011)

Lane, C. (May 29, 2002) "Supreme Court Turns Down Appeal by Killer Who Cited Bad Lawyering," The Buffalo News,

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"Public Defender Offices Nationwide Received Nearly 5.6 Million Indigent Defense Cases in 2007" (Sept. 16, 2010) Department of Justice,

"State Indigent Defense Commissions" (2006) The Spangenberg Group,



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