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Video:Charts: Why You're in Deep Trouble If You Can't Afford a Lawyer

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Fifty years after the groundbreaking "Gideon" ruling, public defenders are overworked, underpaid--and America's poor are paying the price.

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JL A (281)
Saturday May 11, 2013, 11:01 am

Mother Jones
Charts: Why You're in Deep Trouble If You Can't Afford a Lawyer
Fifty years after the groundbreaking "Gideon" ruling, public defenders are overworked, underpaid—and America's poor are paying the price.

By Hannah Levintova, Jaeah Lee, and Brett Brownell | Mon May. 6, 2013 3:00 AM PDT

Watch: Public defenders and legal advocates discuss ways to solve the nation's public defense crisis, 50 years after the Gideon decision:

In January 1962, a man sitting in a Florida prison cell scrawled a note to the United States Supreme Court. He'd been charged with breaking into a pool hall, stealing some Cokes, beer, and change, and was handed a five-year sentence after he represented himself because he couldn't pay for a lawyer. Clarence Earl Gideon's penciled message eventually led to the high court's historic 1963 Gideon v. Wainwright ruling, reaffirming the right to a criminal defense and requiring states to provide a defense attorney to those who can't afford one.

Fifty years after the ruling, many legal advocates [1] contend that the justice system is still failing the poor. Last week [2], the Supreme Court disappointed reformers when it refused to rule on a case involving a Louisiana man serving a life sentence [3] after waiting five years in jail while the state came up with money to pay his court-appointed lawyer. (The federal system for defending the poor is relatively well resourced, though it's also struggling with budget cuts. Several of the attorneys defending Boston bombing suspect Dzhokhar Tsarnaev face up to three weeks [4] of sequester-mandated furloughs later this year.)

Just how bad is the state of public defense in America? The charts below detail some of the biggest challenges plaguing the system.
Impossible Caseloads

Since the 1963 Supreme Court decision, America's prison population has grown more than tenfold [5]—from 217,000 inmates to 2.3 million—largely due to decades of the war on drugs and tough-on-crime policies. It's been nearly impossible for the public defense system to keep pace. In 1973, the National Advisory Council on Criminal Justice Standards and Goals (NAC) issued a report recommending annual caseload maximums [6] for public defenders. They are the only national recommendations of their kind but are considered imperfect. "Many of us don't consider them to be realistic if you expect quality representation," says John Gross of the National Association of Criminal Defense Lawyers (NACDL). "These standards were established 30-plus years ago when, arguably, criminal cases were a lot less complex." And even so, these recommended caseload limits are consistently exceeded in public defenders' day-to-day practice. On average, a public defender would need about 3,035 work hours—a year and a half—to do a year's worth of work.

About 6,900 more public defenders would be needed to complete the current caseload. It's no wonder that many well-meaning defense lawyers are sucked into a "meet 'em and plead 'em" routine (PD parlance for meeting clients just a few minutes or hours before their hearings and then encouraging them to admit guilt just to get rid of the case). It's a large reason why 90 to 95 percent [7] of their clients plead guilty, says Tanya Greene, an ACLU attorney and capital public defender. "You've got so many cases, limited resources, and there's no relief," she says. "You go to work, you get more cases. You have to triage."

Why don't public defenders just turn down cases they don't have time for? About 60 percent [8] of state systems don't allow that [9]. Plus, Greene explains, "There is no lawyer that becomes a public defender wanting to disserve their clients." Advocates for reform say there must be better pay for contract attorneys and other non-full-time PDs who assist with case overflow. The rates offered to private lawyers taking on indigent defendants differ by state, but a decent rate hovers around [10] $65 an hour—pretty measly compared to typical private rates—and even then, many states also cap how much pay per case these lawyers can receive. Flat fee contracts aren't much better [11].

Justice on the cheap

Compounding the caseload problem is the money problem: Public defense budgets are paltry compared to spending on the other side of the criminal-justice system—prosecution, police, and corrections. In 2007, total spending by state prosecutors offices nationwide exceeded that of public defender offices by nearly $3.5 billion. That same year [12] in California, the budget for public defense was about $300 million less than that of prosecutors. In 2008, for every dollar spent on public defense, taxpayers spent nearly $14 on corrections. Here's how these disparities shake out:

​Jonathan Rapping, a longtime public defense attorney and the founder of Gideon's Promise [13], a training program for public defenders in the South, explains that this disparity exists in part because of the stigma attached to the clients public defenders take on. "There is a view that public defenders represent people who commit the most heinous crimes. There's a sense of, 'Why would I fund a lawyer to help get a rapist or a murderer out of prison?'" Considering that 80 percent of defendants can't afford lawyers, the reality is quite different. "The vast majority of people who public defenders represent are those we see every day," Rapping says. "Maybe they did something wrong. But it's something relatively minor. And now they're sitting in jail on a bond they can't make, they've lost their housing, their job. For these mistakes, families are torn apart and communities are ruined."

Spending on public defense per capita is low in all states, but some do better than others:

It's worth noting that the United States spends less on public defense as a percentage per capita than every single European nation.

Searching for solutions

One possible solution, says the NACDL's Gross, would be to cut back on criminalizing the small stuff. Misdemeanor charges that overwhelm PD caseloads—things as minor as putting your feet on a subway seat [14] or riding a bike on the sidewalk [15]—inevitably get the least attention, though they have immense consequences even if the accused serves no jail time. People convicted of misdemeanors may lose their jobs, subsidized housing, federal loans, or other public benefits. "A criminal conviction follows you for the rest of your life," Gross says. "I don't know what qualifies as a minor case anymore. But when you start criminalizing things like driving with a suspended license, you start asking the criminal-justice system to do things it wasn't designed to do."

Most importantly, advocates say the system needs a serious attitude shift. Rapping calls it "rewiring" the mindsets of prosecutors, judges, and even public defenders, many of whom "have come to accept that processing people through the system is okay." Dawn Porter, the director of Gideon's Army [16], a forthcoming HBO documentary about the public defense system, says fixing public defense requires addressing the "culture of indifference" it exemplifies. "The police will know a neighborhood and say this person did 'something.' So they'll charge them with 'something,'" Porter explains. "'So what if so-and-so didn't do this crime, they did something else.' That's not how our justice system is supposed to work. We have to encourage prosecutors, DAs, and judges to actually look at cases rather than just push people through the system and assume they're all guilty and deserving of this. So money helps. But I don't think money is the only answer: You also have to be interested in doing the right thing."
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Past Member (0)
Saturday May 11, 2013, 2:30 pm
This sounds awful You would not want to be in trouble without money in the US by the sound of it

Noted thanks

. (0)
Saturday May 11, 2013, 3:03 pm
Posted. I hope I never need a lawyer.

Angelika R (143)
Saturday May 11, 2013, 4:35 pm
What a sorry situation! Piss-poor in fact. On the other hand, all the money private prison business is making would buy a defense lawyer for the whole country I guess..

JL A (281)
Saturday May 11, 2013, 5:31 pm
Thanks Carol, Michael and Angelika for sharing the perspectives of people living in other countries looking at this aspect of the US.
You are welcome Carol.
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Aileen P (40)
Sunday May 12, 2013, 2:26 am
Noted. Thank you.

Darren W (218)
Sunday May 12, 2013, 5:00 am
Thanks for sharing this. Without money, you're pretty limited to what you can do, and where you can go...

JL A (281)
Sunday May 12, 2013, 8:31 am
You are welcome Aileen and Darren.
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Mary Tunstall (0)
Sunday May 12, 2013, 12:38 pm
Thank you posting this petition My husband got sent to prison at 17 yrs old for being with someone who committed a serious crime. The perpetrator went home in 93 my husband is got sick in prison due to a brain tumor. Without proper medical care he now has only the left side of his brain and is currently housed in solitary confinement. A person truly has no idea how messed up the system is until your hit in the face with it head on.

M B (62)
Sunday May 12, 2013, 1:03 pm
You ALWAYS need a lawyer !!

Joanne Dixon (38)
Sunday May 12, 2013, 1:26 pm
Mary, I am so sorry. My husband is in prison also, but it wasn't because he had poor defense. He sort of won the public defender lottery. In fact I think his sentence would have been much longer without her. Of course she is starting to get burned out, it's dreadfully difficult work. I sent her the link with a Mothers'
Day wish. Thanks for posting.

Lois Jordan (63)
Sunday May 12, 2013, 2:02 pm
Thanks, JL. Yes, the criminal justice system is desperately in need of a complete overhaul; the corruption and negligence stinks to high heaven. Private prisons have only compounded the problems. Groups like The Innocence Project have emerged to tackle some of this mess thankfully. Decriminalizing drugs will have help a lot, as well as eliminating private prisons.

JL A (281)
Sunday May 12, 2013, 2:08 pm
You are welcome Joanne and Lois.
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Birgit W (160)
Sunday May 12, 2013, 7:13 pm

Gene J (290)
Monday May 13, 2013, 10:19 am
It isn't just the south. This is a nationwide problem. Justice delayed is justice denied. Yes, I agree. Great video but whence comes the will to adequately staff and fund public defenders? It just doesn't seem to exist, even in the most liberal of states, budgetary issues (and the absolute inability of legislatures to vote for tax increases in this time even for the most critical of public needs - and I will grant that much of the public does not consider public defense a priority for the minority community) and flat out racism just keeps this problem out of sight and growing worse by the year. That comment about, well if they didn't do this, they did something else is telling, and truly what many people believe. Which is disgusting. And they'd think so too if they ever got caught up in something like what happens to so many minority males.

The death penalty, to me, is immoral all by itself, I don't believe human beings capable of perfection, and in a capital case you must be. Beyond a reasonable doubt means just that. So MANY people have been found innocent later, some after having been murdered by the state and that is what the death penalty is to me, state sanctioned murder, making me complicit against my will, because I don't think we have right to take another life, for whatever reason. Personally I think life imprisonment without parole a harsher punishment. But the fact that the "state" has been wrong SO many times says to me that this is not a penalty that should be allowed anywhere, the risk of error is too high and you can't fix it when you have already killed the innocent one. We have lots of needs in this country, our Congress is unwilling to lead or fund many of them. That should be unacceptable to us as citizens. You can't just write off lives, that is just unthinkable to me and immoral. It makes US, the state, the country, the same as those who kill, even though we claim it a deterrent, that has been proven false many times, states with the death penalty have higher murder rates than states without. There's the red herring of it is cheaper to kill than to house them for life, that's not true either and studies have shown that. The death penalty is an anachronism humanity should have left behind long ago, since we haven't, today would be a good to do so. Before any other innocent lives are taken. And, it isn't just death that is at issue here, it is the wrongful convictions - what are 20 stolen years worth? Cities, counties and states find out when one of these projects prove the innocence of a man like the one in the video. And those are happening far more often these days too with the ever increasing sophistication of DNA, and other forensic, tests. This is a wrong screaming to be righted, and we can, if we have the will, the mercy and the humanity to do so.

JL A (281)
Monday May 13, 2013, 10:26 am
LegalAid is a federally funded program this Congress cut the budget of prior to the sequestration, which deepened the cuts.
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Birgit W (160)
Monday May 13, 2013, 1:59 pm
Money talks, like always. It is outrageous that people who can afford a very good lawyer can practically get away with murder (As we have seen in the past).

JL A (281)
Monday May 13, 2013, 2:19 pm
You cannot currently send a star to Birgit because you have done so within the last day.

Gene J (290)
Monday May 13, 2013, 3:29 pm
You're right, of course, JL. Legal Aid is separate in my state from the Public Defenders which are part of the District Court run by the state. Legal Aid is severely strapped to and has been all of my adult life. Public defenders have always been overworked too, but not to the extreme they are now, at least not in Minnesota. We used to fund that which was important without complaint for the most part, the parties actually worked together, that ended with the onset of this century and a million new immigrants, mostly from red states it seems, though we are still solidly blue, we are not what we once were. And if that is true here, I can only imagine how much worse it is in other states where a helping hand, a good public education and cooperation have not always been the way of things. I've never thought it an accident I was born into what has usually been the most liberal state in the Union, the DFL originated here in the 40's as Hubert Humphrey brought together the Democrats and the Farmer Labor parties. We've descended far from those days, even here. Which is why Europe is so far ahead of us in so many ways except perhaps for celebrities and people who are famous for being famous - we lead the world in those. But that's about all, well, except for consumption of resources, we still take the cake, literally, there too...

JL A (281)
Monday May 13, 2013, 3:37 pm
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Leann Wells Huber (0)
Monday May 13, 2013, 3:37 pm
I know from first hand experience what the lack of money for an attorney can do, in terms of being able to obtain a lawyer in this country. I divorced my husband in 2002 due to many years of domestic violence (routine injuries, rapes, being terrorized, etc.). My prime motivating factor was to take my 5 year old son to safety so not only was he not exposed to the violence and abuse anymore, but so he would stop modeling his actions after his father's (he was continually attacking little girls in his school, as he had witnessed his father doing to me for so long, and eventually had to be put in a behavior disorders classroom for a year because he was so behaviorally and emotionally out of control). Despite ALL the reams of documentation, law enforcement reports, witness statements, tape recordings, photos, videos, therapy reports, etc., I had, my ex manipulated and lied his way into getting full custody of my innocent, very, very badly shaken little boy (he was so badly affected by the violence and abuse that at one point he was even diagnosed as austic), because my Legal Aid attorney was so overworked (and it was her first year "practicing" law) that she made many grevious mistakes, refused to even address any of the violence and abuse (she had no idea what domestic violence and child abuse was really about and had no time to research the subject ), and didn't have time to really give a damn, as her actions well proved. In the 11 years since that time I have routinely sent a synopsis of events with certified letters to attorneys pleading for their help in rescuing my son (asking for pro-bono assistance), routinely have gone back to Legal Aid for help (I seem to always be a couple hundred dollars a year over the poverty level so I am always disqualified from services), tried to obtain legal help through the Coalition Against Domestic Violence (for some reason their attorneys don't take American, English-speaking domestic violence cases, but they do accept cases where the woman is from another country and doesn't speak English), have consulted with attorneys from the local law school (their students act as the attorneys, and my case was deemed too complex for just a student), tried to get my son into child abuse counseling (my ex presented a court order demanding that this "completely unnecessary and useless "therapy" be stopped instantly", as he didn't want to risk my son telling the truth), tried to speak with the therapist my ex had chosen for my son (who had been manipulated into believing I was actually DELUSIONAL and was making it all up despite what my son would tell him, insisting on believing that I was the perpetrator - which is exactly why my son was forced to see this quack - because he bought into all my ex's lies and helps to make a great case against me), have tried to work through the schools (I was told by my ex's attorney that I would be jailed if I "interfered" with my son's scholastic career), tried to get the superintendent of schools involved (I was told that no matter WHAT they were going to follow my ex's dictates even when his demands went against the court orders they had a copy of), have contact Child Protective Services many times (most recently I was blackballed and CPS refused to even take my calls, thanks to my ex's attorney's lies and manipulations), and was shocked when I represented myself in court once (and was a huge failure as I had no idea what I was doing, I was just propelled by desperation) after my ex told my son that he was going to kill him (the CPS investigator perjured herself by saying I was lying about everything as my ex and his attorney had threatened her job and she knew they could really get her fired as they had done it before to people who had tried to help my son and I), etc... the list of horrors goes on and on and on and on... I have tried EVERYTHING, for all these years, without a single iota of success, because it is so much easier to believe the lies and manipulations, malicious gossip about me intended to circulate and predispose people's opinions, and threats of my ex and his equally abusive attorney, than to investigate what my son and I continue to go through (I moved 5 miles away and still my ex comes to my home and injures me, threatens me, has vandalized my property on multiple occasions, blames me for my son's current abusive and irresponsible attitude, stalks me, etc...). My ex always giggled and smiled while hurting me -- he has been labeled as a true dictionary definition sadist, and continues to taunt me whenever he can find an opportunity (even though I avoid him like the plague), like when I am begging him, over the phone, to allow me to see my son (my ex says that if I see my child for an hour and a half every two months it is more than sufficient). My son has now become a batterer in his own right. His father has trained him to be physically, emotionally & verbally abusive to me. My son is not allowed to tell me what goes on in his life or he will be punished. I have been dealing with a severe post traumatic stress disorder since the violence and abuse began, shortly after my son's birth, which worsened considerably when my ex obtained sole custody. My son would be talking to me on the phone when he would suddenly start begging, screaming, shouting, "NO!, NO!", then gutterally calling out my name before the phone would go dead. I learned that if I called back, hysterical, asking for my son, my child would be injured even more, so I had no alternative but to let it go, and just pray and sob. I HAVE NEEDED AN EFFECTIVE ATTORNEY FOR THE LAST 15 YEARS BUT I CANNOT AFFORD ONE, and Legal Aid is too busy (and my disability income is always just $200 to $300 over the annual limit for services) to help me. I have no recourse and because of this my PTSD cannot improve, despite many, many years of therapy. There should be a way to obtain help! I am shattered beyond words. Desperate and unbelieving. Constantly further traumatized. Without an attorney I have been helpless and can only watch my child being routinely injured, terrorized, and turned against me. All I can do is pray, and God appears to favor our batterer, my ex, and his equally abusive live-in girlfriend, as well as my ex's attorney, who uses the legal system as a battering tool, and likes to laugh at me when I am trying so desperately to hold it together. Money could save my precious child, but I don't have any, can't get a loan, can't work, and have no one to go to. I would rather be dead than going through all this. I would give ANYTHING for my son to be happy, safe, and well adjusted, but there is NOTHING I CAN DO without an attorney. I just don't have the money, so I just pray as hard as I can, and continue with the therapy and disability, hating myself every single step of the way for being so helpless, hopeless and ineffective. Money talks, which is why I am not heard.

Angelika R (143)
Monday May 13, 2013, 5:27 pm
omg-WHAT A HEARTBREAKING and horrible story there from Leann - sorry to say I can be of no help and have no advice as I am not familiar with things and ways one might have there. All I know is that in desparate cases such as this people often have turned to the media for attention and a way to help through their connections and possibilities. At least this is what's done over here quite often and we have also lokal radio shows for such matters. Perhaps check if there is any such avenue of approach to take?

Angelika R (143)
Monday May 13, 2013, 5:35 pm
Of all these various non proits we've come to know here on C2 perhaps one could pick up the story, but they would have to be AWARE of it. All the disappointments Leann went through already, yet another "no sorry" would be the worst outcome, so why not just try? If I were her, provided the story is completely sincere, I would just take and copy this what she wrote here, an authentic outcry, and send it to anyone, starting at The Daily Kos or where ever...

JL A (281)
Monday May 13, 2013, 5:36 pm
Thanks Angie for your compassionate response to Leann. It isn't just in criminal cases that the poor can be deprived of justice related to money issues.

Angelika R (143)
Tuesday May 14, 2013, 6:38 am
JL-from what I read above WE ARE talking crime here, only lacking any legal evidence, that's the problem. Her ex apparently is rather wealthy. Were this case presented to us by some media professionals, carefully edited to suitable format, we'd all be hitting some "sign" button now.

JL A (281)
Tuesday May 14, 2013, 7:44 am
Excellent points Angelika and I think some comments disappeared from this thread since my last comment.
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