Justice Deserts: Spatial Inequality and Local Funding of Indigent Defense

This Article, written for a symposium on “Funding Justice,” maps legal conceptions of (in)equality onto the socio-geographic conception of spatial inequality in relation to indigent defense services in Arizona. In particular, we examine county-to-county variations in funding and structures for providing this constitutionally mandated service. We conclude that the State of Arizona’s current system for delivering indigent defense services puts it at serious risk of violating the U.S. Constitution’s Sixth Amendment right to counsel and/or the Equal Protection Clause of the Fourteenth Amendment. We outline county-level, legislative and judicial solutions to the problems we identify. Like more than a third of U.S. states, Arizona delegates to counties the responsibility of providing counsel to indigent criminal defendants. Individual Arizona counties must finance this service, and each also has the autonomy to determine how best to provide it, e.g., by establishing a Public Defender office, paying contract attorneys, and/or appointing counsel. Inequalities and problems associated with underfunding of indigent defense arise, however, because county governments in Arizona are financed primarily by local tax revenue, leaving counties with dramatically differing capacities to provide both discretionary and mandatory services. These disparities occur in part because Arizona is unevenly developed to a dramatic degree. For example, more than 60% of the state’s residents live in Maricopa County, while five of the state’s remaining 14 counties are each home to as little as 1% or less of the state’s population. Further, poverty rates and income levels vary dramatically from county to county, with non-metropolitan counties typically featuring the highest poverty rates and the lowest per capita and median household incomes. Because the fiscal capacity of a local government is limited by its residents’ per capita income, this uneven development - coupled with an emphasis on local tax revenue to finance county government and virtually no effort at redistribution of tax revenue at the state level - creates severe spatial inequalities in service provision among counties. To illustrate the county-to-county variations in the funding and delivery of indigent defense services, we discuss in detail the economic and demographic profiles of five Arizona counties: metropolitan behemoth Maricopa County, with a population of 4 million and a diverse economy; sparsely populated, barely metropolitan and amenity-rich Coconino County, home of the Grand Canyon and a tourism-driven economy; persistent poverty Navajo and Apache counties, both with significant American Indian lands and American Indian populations, who consume state justice systems services at a lower rate than non-Indians; and Arizona’s most rural county, Greenlee, with only 8,000 residents, a dearth of lawyers, and a surprisingly affluent, mining-dependent economy.In addition to focusing on disparities in funding of indigent defense among these five Arizona counties, we also assess the counties’ provision of indigent defense for several problems commonly associated with underfunding: caseloads and competency, financial conflicts of interest, lack of parity with prosecution, and the risk that a single case will overwhelm a county’s defense system. Despite some gaps in publicly available information detailing the funding and provision of indigent defense - information that could be developed through discovery should litigation be initiated - we find sufficient evidence of significant county-to-county variations in funding and delivery of indigent defense to suggest constitutional violations. At particular risk from a systemic standpoint are non-metropolitan counties that do not have Public Defenders but instead rely entirely on lawyers with whom county governments contract to provide indigent defense. To the extent that these lawyers are supervised or their caseloads monitored, that task falls to local Superior Courts, a situation which itself raises problems. While Arizona’s dramatically uneven development and heavy reliance on local taxation to finance indigent defense make it a particularly interesting case study, we assert that the legal arguments we formulate could apply to any of the 18 states that fund indigent defense primarily or entirely at the county level.