The Price of Misdemeanor Representation

ABSTRACT Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forty years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level misdemeanor cases, thereby freeing up resources for more effective representation of those charged with more serious crimes. States can achieve this result without violating constitutional requirements by: (1) amending overbroad appointment statutes, (2) reducing penalties for certain minor offenses, (3) amending probation statutes, and (4) requiring judges and prosecutors to identify at the beginning of the proceedings those misdemeanor cases that are the most serious. Although it may appear that denying counsel to some misdemeanor defendants will prejudice their interests, empirical evidence suggests that counsel in misdemeanor cases do not typically provide significant benefits to many of their clients. Rather than spending resources on low-value representation, states should use those resources to reduce the caseloads of indigent defenders, thereby increasing the quality of representation in felony and serious misdemeanor cases. To ensure that result, states should, and indeed must, couple reforms designed to reduce counsel appointment in misdemeanor cases with enforceable, numerical limits on per-attorney caseloads. TABLE OF CONTENTS INTRODUCTION I. THE CASELOAD CRISIS II. SOURCES OF THE CASELOAD CRISIS A. Providing Counsel to More Defendants: The Increasing Number of Cases 1. The Constitutional Standard: Broadening the Scope of the Sixth Amendment 2. Increased Number of Prosecutions 3. Rising Rates of Indigence 4. Overall Effects B. Indigent Defense Budgets: The Failure To Keep Pace III. FOCUSING RESOURCES ON SERIOUS CASES A. Empirical Evidence of the Limited Value of Counsel in Misdemeanor Cases B. Reducing the Appointment of Counsel in Misdemeanor Cases 1. Amending Statutes To Require Appointment of Counsel Only When There Is a Constitutional Right 2. Eliminating Imprisonment Penalties for Minor Offenses 3. Amending Probation Statutes 4. Requiring Judicial and Prosecutorial Triage IV. THE IMPERATIVE FOR MANDATORY CASELOAD CAPS CONCLUSION INTRODUCTION Outrageously excessive caseloads have compromised the quality of indigent defense representation. (1) Nationwide, even public defenders representing defendants charged with serious felonies sometimes represent as many as 500 clients per year. (2) As one public defender put it: "When caseloads are so high that a public defender can only spend 3.8 hours per case, including serious felony cases, [our] public defenders cannot ensure reliability." (3) Despite the scarcity of attorney resources, indigent defense systems force counsel to direct significant attention to low-level misdemeanor cases. In North Carolina, for instance, an indigent criminal defendant charged with a second littering offense has a right to court-appointed counsel. (4) In order to help solve the indigent defense crisis, states should redirect resources now spent on such matters to reduce indigent defender caseloads so that those who represent defendants charged with more serious crimes will have more time to spend on those cases. The two major sources of the caseload problem are easy to identify. …