By Haashir Lakhani*

The phrase “you have the right to an attorney” is so ingrained in our social conscience that we perhaps do not even give it a second thought. The task of upholding this right for indigent defendants falls largely on public defenders, with some cases being assigned to other court-appointed attorneys. However, underfunded and overworked public defender offices are often burdened with incredibly high caseloads, which begs the question: are states actually upholding indigent criminal defendants’ right to counsel?

The right to legal counsel for criminal defendants arises out of the Supreme Court’s interpretation of due process under the Constitution. The two landmark cases on this issue are Powell v. Alabama and Gideon v. Wainwright. Powell, a 1932 case, involved nine Black youths who were all accused of raping two White women. The defendants were rushed through proceedings and sentenced to death by an all-White jury, except for the youngest, who at only twelve years old was sentenced to life in prison without parole. Two defense lawyers were provided, as was required under Alabama law for death penalty cases, but they were only appointed the morning of trial and as such had no time to investigate or build their defense. The Supreme Court overturned the defendants’ convictions, ruling that the defendants were not provided with their right to counsel “in any substantial sense”.

Because the holding in Powell was restricted to capital proceedings, the right to counsel would not be extended to non-capital cases until 31 years later in Gideon v. Wainwright. In this case, Gideon was charged in Florida state court for felony breaking and entering. The trial judge in the case refused Gideon’s request for a lawyer and he was subsequently convicted and sentenced. Gideon, utilizing the prison library, petitioned the Supreme Court to hear his case. The Supreme Court agreed to hear his case and appointed him a lawyer. In a unanimous decision, the Supreme Court held that the Sixth Amendment’s effective assistance of counsel requirement is enforceable against the states through the Fourteenth Amendment’s due process clause. In short, the Supreme Court ruled that criminal defendants have the right to counsel under the Constitution and that states must provide a lawyer if the defendant cannot afford one. Justice Black went so far as to state that lawyers in criminal cases are “necessities, not luxuries”.

One relatively new approach to determining if defendants are receiving effective defense counsel is to look deeply at the data surrounding the workload of public defenders. Using a comprehensive survey of private defense lawyers and public defenders, a baseline was established for how many hours are necessary to represent clients in various types of criminal cases. Perhaps unsurprisingly, subsequent studies on the workload of public defenders have shown the discrepancies between this baseline and the reality on the ground. In Missouri, Colorado, and Rhode Island, public defenders had two to three times the workload they should have been limited to in order to provide effective counsel. Likewise in Louisiana, public defenders had almost five times the recommended workload. These heavy workloads are representative of the reality faced by many public defender offices, and often lead to the job being unsustainable for many attorneys.

The other side of this equation is that public defender workloads are so high because they are understaffed and underfunded. According to Minnesota State Public Defender William Ward, his office would need to hire 149 more attorneys and 112 support staff in order to meet national standards for public defender caseloads. Even those standards are arguably outdated as they were developed before the regular use of body cams, smartphones, and other technology that adds time to the discovery process.

Another issue with retention in public defender offices is the salary. Public defender offices are often unable to provide competitive salaries due to budget constraints and this leads to them losing out on new hires, sometimes to prosecutor offices. This inequality of resources between public defender and prosecutor offices creates problems with access to justice for defendants, something that prosecutors themselves acknowledge as an issue. A potentially powerful way to advocate for pay parity between public defenders and prosecutors was put on display in New York City as both groups of lawyers utilized collective bargaining to advocate for and achieve a gradual move towards pay parity.

Collective bargaining was recently utilized in Minnesota where the oppressive workload for public defenders culminated in Minnesota Public Defenders voting to authorize a strike just a few weeks ago. The unionized attorneys and the Minnesota Board of Public Defense were able to come to an agreement that includes cost of living increases through 2023 and the unionized public defenders will vote on the agreement within the next two weeks. This agreement does not provide a particularly long-term solution, but it does provide some respite for public defenders in Minnesota until more institutional budget changes can be made on the state level and it highlights the potential power of collective bargaining.

Public defenders play a vital role in upholding the constitutional rights of indigent defendants. However, due to being underfunded and overworked, public defender offices face challenges in providing representation to their clients. In order to rectify this situation, state and county governments must be willing to provide public defender offices with the resources and budget to properly provide their clients with their constitutionally guaranteed right to effective counsel. It is time for states to loosen their purse strings and treat indigent criminal defense as the constitutional necessity it is and not as a luxury.

*Haashir Lakhani, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Co-Lead Symposium Editor