Hitting Two Birds with One Stone: Strategies for Addressing the Indigent Defense Crisis and Overincarceration

Originally posted by ACSblog.

Earlier this year, the Orleans Parish Defenders Office (OPD), which represents more than 80 percent of criminal defendants in Orleans Parish and handled 30,000 cases in 2011, faced a particularly severe fiscal crisis. The office fired a third of its staff and effectively slashed pay for those who remained. Private contract lawyers handling death penalty and conflict cases stopped getting paid. Entire divisions of the office were cut. Hundreds of criminal defendants were left with no lawyer to represent them, though their lives and liberty were on the line. Funding for indigent defense in New Orleans relies, in part, on collection of traffic fines, as well as court fees paid by indigent defendants who plead guilty or are convicted at trial. In recent months, the office has been able to rehire a handful of lawyers after lawmakers supplemented the indigent defense budget by increasing the indigent defender fee by $10 and seatbelt violations by $20. And two weeks ago, OPD filed a lawsuit alleging that New Orleans Traffic Court has shortchanged indigent defense between $2.4 million to $6.7 million since 2007. 

The persistent underfunding of indigent defense systems in the United States for the last 50 years has occurred on the watch of our state courts and our profession. As we prepare to commemorate the 50th anniversary of Gideon v. Wainwright on March 18, 2013, all of us must know that when this chapter in the history of the American justice system is written, it will not be a pretty picture.

After first recognizing a right to prospective injunctive relief for grossly underfunded public defender systems in 1989, the federal courts abdicated their responsibility to enforce the Sixth Amendment, citing abstention concerns. As a result, since 1992, almost all significant systemic challenges to underfunded public defender systems have occurred in state courts. The principal goal of this first generation of state court litigation was to increase funding for indigent defense systems around the country. In better economic times, this goal was difficult, to say the least, since legislatures and occasionally the executive branch, rather than the courts, appropriate funds for state agencies. The task is Herculean during the current budget crisis, when state courts are turning to desperate measures to generate revenue, such as aggressively collecting fines and fees off the backs of the poor.   

That first generation of systemic indigent defense litigation may have come to an end with the 2009 publication of the American Bar Association's “Eight Guidelines of Public Defense Related to Excessive Workloads,” which authorize, and indeed compel, public defenders with excessive caseloads to refuse to take additional assignments. The first case applying the “Eight Guidelines,” Missouri Public Defender Commission v. Waters, decided by the Missouri Supreme Court on July 31, 2012, specifically authorized public defenders in that state to refuse to accept additional case assignments in the event that their caseloads become unmanageable.

The principal goal of the second generation of indigent defense litigation should now be to significantly decrease the caseloads of overburdened public defenders, which can be done by pushing legislatures to decriminalize low level offenses that do not threaten public safety. The confluence of the current state budget shortfalls, lower crime rates nationwide, and at least two decades of reforms and evidence-based alternatives to incarceration, make this the perfect time for such litigation to serve as an incentive for smart criminal justice reform. This kind of indigent defense litigation may present an unprecedented opportunity to help undo forty years of "tough on crime" policymaking that has resulted in a crisis of mass incarceration across the United States. 

Earlier this year, Maryland’s highest court issued an important and long-overdue ruling: under state law, poor people have a right to an attorney before having their bail set by the court.  After considering the alleged $23 million-a-year price tag associated with this ruling for defenders alone, the quite sensible response from state lawmakers was: Don’t send so many people to jail in the first place. Legislators then passed a series of reforms including pretrial diversion and increase in the number of offenses that will be handled by criminal citation instead of arrest and detentionThe danger is that such reforms can result in people getting criminal convictions, albeit convictions that carry non-incarceration sentences, without counsel. Ultimately, it would have been better for lawmakers to have declassified certain petty offenses that our civil justice system could address. That said, it was a step in the right direction.

Indigent defense reform litigation in Missouri may also result in fewer people being sent to prison. In Waters, the Missouri Supreme Court specifically authorized trial judges faced with an overburdened public defender organization’s refusal to accept additional cases to triage cases on their dockets so that those alleging the most serious offenses are given priority, even if that means other categories of cases are continued or delayed.  The court then pointedly noted that such triaging might “result in the release of some offenders because of a violation of their rights to a speedy trial.”  In short, it will now be up to the Missouri Legislature to decide  whether it will provide adequate resources to ensure competent and effective representation by the Missouri public defender in the plethora of less serious cases in which counsel is now required, or simply decriminalize such offenses altogether.

The lesson here is that advocates of reform should now seriously consider marrying indigent defense reform efforts with the work of ending mass incarceration. If, in fact, the prison remedy is no longer on the table for thousands of low risk offenders as a result of underfunded indigent defense systems, policymakers may well be compelled to make alternatives to prison available for this population, or even to declassify certain offenses that need not be criminalized in order to protect our public safety. This could ensure that public defender resources are sufficient for competent and effective representation of higher risk offenders.

Learn more about indigent defense: Sign up for breaking news alerts,follow us on Twitter, and like us on Facebook.


View comments (1)
Read the Terms of Use

kay sieverding

I was imprisoned by DOJ three times for five months without a criminal charge or a bail hearing. (see PACER DDC 09-0562 doc 7-2) I don't have a criminal record. I was not accused of disrupting a courtroom and the transcript shows that I was very polite. It turns out that 18 USC section 1346 recognizes a right to a bail hearing with counsel and witnesses whether you are criminally accused or not but at the time I didn't know that. I was told in Federal Court that I did not have a right to counsel or to an evidentiary hearing because I wasn't accused of a crime. The witnesses against me weren't sworn and I was not allowed to cross-examine them. (See PACER d of Colorado 02-1950 document 884)

I was held for 124 days on indefinite detention. During that time the director of the Colorado Federal public defenders wrote to me in jail and said that they could not defend me because I was not accused of a crime. The only law library resource was an incomplete set of the first edition of American Jurisprudence and the Colorado revised statutes. I was held without trial without an A0472 form and then released without a written order although 18 U.S.C. section 1346 requires a written order for both detention and release that has to contain various findings. Then the USMS entered non-existent charges against me for bail violations and felony obstruction into the NCIC. I didn't know that until 5 years later because the FBI initially claimed it had no records on me and the USMS claimed that it had released all records it had on me. So then I was arrested again in Wisconsin. An assistant U.S. attorney showed up in court and said that the government was not involved but the clerk of court who was presiding said that she had spoken to the federal judge in Colorado (Edward Nottingham who later resigned after a prostitute told the 10th Circuit that he asked her to lie to investigators about their relationship) and he said that he wanted me. There was a federal public defender there and he said that if there was a criminal charge I was entitled to a bail hearing. According to the Bail Reform Act of 1984 statute, (18 USC 1346) I was entitled to a bail hearing even if there was no criminal charge but I was unprepared because I wasn't expecting to be arrested so I hadn't studied up. I offered my driver's license and asked for a weekend to study law but that was refused. I was held for another 22 days with no bail hearing and taken in chains 1200 miles and left there to get home on my own after not being allowed to bring my driver's license or credit card.

I sued DOJ under the Privacy Act. (see DDC 09-0562 and 11-01032) In order to get my case dismissed DOJ pled that the purpose of the Prisoner Tracking System is to manage the detention of federal prisoners held pursuant to a "judicial proceeding". (See 09-0562 doc 8-1 p 23) That actual DOJ Notice in the Federal Register for the PTS, Vol. 69, No. 82/April 28,2004 P. 23214 uses the words "criminal proceeding".

Later I got my records from the Joint Automated Booking System (which earlier DOJ said didn't exist). I sued DOJ again, (DDC 11-01032) and DOJ pled in a MTD under Rule 12(b)(6) that “JABS is not limited to inclusion of records that were created incident to arrest for a ‘criminal charge’”. (doc. 61-1 p 10) Actually the FR Notice for JABS (Vol 66 p 20468 and Vol 71 p 52821) says, that "the categories of individuals covered by the [JABS] system" is "alleged criminal offenders" and no one else. I pointed this out in my objection but DOJ came back and said “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”. How is that consistent with "the categories of individuals covered by the [JABS] system" is "alleged criminal offenders" and no one else? And Judge Bates ruled that “JABS was not limited to arrests for a criminal charge.” Now I am trying a Rule 15 motion to amend.

I got into this whole mess because of violations of due process. In Routt County Colorado I was criminally prosecuted without a written document signed by a district attorney employee. There was no written statement of probable cause and no arraignment. Then the prosecutor dismissed the charges without a hearing, which is prohibited by Rule 41 of Colorado Rules of Criminal Procedure, but gave a press conference to say that there was probable cause and a victim but a trial would be too expensive. That was published in the newspaper. I have a problem with on-line defamation too but am told there is nothing I can do to stop it.

I was prosecuted in Steamboat Springs based on a police form that is supposed to be used only by a police officer who witnesses a crime and doesn't have time to get a warrant. There was no warrant. No officer claimed to have witnessed me committing a crime. The form was signed only by the wife of the city council president. She was my neighbor. She accused me of accusing her of violating the zoning. Which I did do, they were violating the zoning -- they build a detached two story 2000 + square foot building with plumbing and heating that only parked two vehicles and also put a guest house with a kitchen and bath into what had been a nonconforming stable and they lived in a low density residential zone so they were only allowed one residential building which they already had before they embarked on the new construction. I heard that they were planning to open a bring your horse bed and breakfast and since this was 10 feet from my property and all the traffic turned around in my drive, because there was no cul-de-sac or other place to turn around on public pavement at the end of the dead end street, I figured it would damage my property. In 2009 her husband admitted to being a convicted felon but he didn't publicly admit that when he was president of the city council and controlled the police budget and promotions.

My neighbor got a restraining order against me on the premise that there was a criminal charge but the district attorney’s office didn't request it so there was no statutory basis. Even after the criminal charges were dismissed, my neighbor kept complaining that I had violated it. She filed a police report saying that she followed me through a store trying to take my photo to prove that she was within 30 feet of me and therefore I should be arrested. If she could prove that I was intentionally within 30 of her she could have me put in jail for 18 months. She lived next door and the 30 feet went inside my house. They used the forms for an intimate relationship and there was no discovery. I only had three days advance notice and was not allowed a continuance to get a lawyer. The judge said that when the criminal proceeding ended the restraining order would end. That is in the transcript but when the criminal charges were dismissed they claimed that the restraining order would continue forever so I had to sell my house to her lawyer. She said under oath that there was no touching of her by me, that I hadn’t followed her around town, that I hadn’t called her in years, and that I hadn’t left the paved street when talking to her and three men who she was with. Her employee said that he worked at her house for 100 days and that other than the one day we talked about the zoning he had only seen me garden and come and go from my house via the public street. I was only accused of saying two sentences on that afternoon.

The police when to my son’s school too and then he dropped out. Also there was a bullet hole through our window but the police refused to investigate. And someone sent me an email saying that someone with the same name as my neighbor threatened to shoot his toddlers if he bought our property and built on it according to what was allowed by the zoning and then his children wandered across the property line.

Because there was a violation of due process I couldn't get a lawyer. I had paid a lawyer $3,000 for criminal defense but he said he was afraid of retaliation against his law practice if he represented me in a section 1983 lawsuit.

In my section 1983 lawsuit, Judge Nottingham didn't write an opinion. Anyone can verify that on PACER see D of Colorado 02-1950 document 455. Also, he awarded $100K plus of attorney fees with no trial, no statement of his authority for doing so, no Rule 11 motions, and no Rule 11(c)(6) orders - see document 911. Apparently the plan was that I would file for bankruptcy (to lose the attorney fees and in the process lose my cause of action), give up on my reputation and career and /or commit suicide.

I felt that I had to continue to litigate for my rights. I figured that I was like Paul Revere and had to do my best to carry the torch of liberty despite my personal limitations. I am an intellectual and I react to stress by intellectualizing and that took the form of researching law and filing pleadings.

Lawyers acted as if they hated me or my case was hopeless. I am totally convinced that my original claims had valid causes of action -- First Amendment Retaliation because I was criminally prosecuted solely for complaining about the zoning violations (according to the police report), "Action on the Case" because the events arose after the city allowed my neighbor to block off and convert the road adjoining my former property to his exclusive use, and conspiracy to deprive rights under color of city ordinances and Colorado statutes. If I had pled the wrong thing, then Judge Nottingham would have written an opinion. I had very substantial economic losses too.

It is not my fault that lawyers have high unemployment. Apparently pro se litigation is supposed to be the reason that lawyers have financial problems. I don't even hate lawyers. I know lawyers whom I like. 25 years ago, my family made $1 Million on patent licensing, which we would not have made if it hadn't been for lawyers. But now it seems that judges and lawyers hate me because I am not a lawyer and they hate me for even attempting to represent myself and for not declaring bankruptcy and not committing suicide.

The 10th Circuit is the leader in issuing orders against pro se litigants and pro se litigation. When I first appealed, they didn’t allow pro se litigants to have an appendix so they used only the defense appendix and the defense left my objection to the magistrate’s report and recommendation out of the appendix. They also misrepresented the underlying facts. The 10th Circuit position is that Rule 5 (d)(4) and Rule 65 don’t apply when one party is pro se. They also ruled last summer, in 11-1227, that a Rule 11 fee shifting judgment doesn’t require a Rule 11 motion or a Rule 11(c)(6) order only a magistrate’s recommendation and an opportunity to file an objection that no one has to read. Apparently too in pro se cases the panel doesn’t even read the case, it is decided by a clerk. They don’t let pro se litigants address the panel. The attorney fee shifting judgment ruined my credit, my business, and my reputation. DOJ argued that it was evidence that I was a vexatious litigant and therefore should be subject to civil imprisonment.

So basically the deprivation of procedural due process rights in civil cases can cause just as much suffering as in criminal cases. What I’ve been through is just as bad as that of many criminal defendants who were imprisoned for crimes they didn’t commit. It really ruined my life and that of my husband and children.

Many disgruntled pro se litigants come from section 1983 cases. The U.S. Judicial conference says section 1983 lawsuits against local government officials are complex litigation. That is one reason why it is so hard to get a lawyer to file one. The local government officials can do whatever they want to anyone they want and there is almost nothing anyone can do to defend oneself against a local government bully.

Stay Informed