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November|December 2004
Lost in the Political Thicket By Heather Gerken
Playing the Market By Paul Sabin
Pay Dirt By Dana Mulhauser

Pay Dirt

States are beginning to pay public defenders as much as prosecutors. That's the wrong solution to a big problem.

By Dana Mulhauser

ENTRY-LEVEL PUBLIC DEFENDERS AROUND THE COUNTRY make about $30,000, or roughly the same as the average pest-control worker. But the Orkin Man has it easier. People are almost always glad to see an exterminator, and his employer usually gives him the tools to do his job. The public defender system is full of lawyers who juggle around 600 misdemeanor cases a year, offices with no money for investigations or for expert witnesses to help defenders make their cases, and attorneys who often do not meet their clients until they stand up together in front of a judge.

In the 41 years since Gideon v. Wainwright gave all indigent clients who are charged with a serious offense the right to a state-paid lawyer in a criminal trial, public defense in most states has traveled a winding road from nonexistent to pitiful. The problem, not surprisingly, is money. In Gideon, the court wrote, "Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime." But governments have been loath to spend more than a small fraction of those sums on poor defendants.

As Gideon passes into middle age, however, there are promising efforts being made to fulfill the landmark's mandate. Public defense, for four decades a county-run mess, is being taken over by state governments, which are beginning to spend money on the task.

Still, progress hinges on the way states spend. States have made two types of attempts at improving public defender services: increasing salaries and increasing resources. The former, although well intentioned, does little to solve the systemic problem, and it can come at the expense of the latter. By focusing almost completely on salary hikes, states are missing the system-wide problems that lead many public defender systems to verge on malpractice. To save a system in crisis, courts and legislatures need to focus on services, not salary.

TWENTY YEARS AGO, A DEFENDANT ACCUSED OF A FELONY in North Carolina had to vie with hundreds of other clients for his lawyer's attention. "Some days you would have 20 or 30 defendants on the docket in superior court. Some of them you never would have met," said Pete Clary, who has defended indigents in North Carolina since the '80s.

Today, Clary is the head of the Forsyth County public defenders office, part of North Carolina's three-year-old state-organized Indigent Defense Services. His state is one of a growing number to rely increasingly on full-time public defenders, rather than farm out most of the indigent defense work to appointed lawyers. The resulting systems, experts agree, are better and, surprisingly, cheaper. "It's much more effective to do it in-house," said Gerard Smyth, the chief public defender for Connecticut, citing the reduced overhead and improved efficiencies that come with full-time public defenders who can focus solely on criminal cases. State-employed public defenders cost North Carolina about $52 an hour, which provides a tidy savings from the $65 an hour that the state pays outside appointed counsel. Such savings, combined with increased funding from the state, means that there are many more people on the job. Felony attorneys who work in Clary's office take one-third fewer cases than they would have in the '80s.

But efforts to improve public defender offices—even in beefed-up, statewide systems like North Carolina's—run up against what political science textbooks refer to as the "public choice problem": Legislators are prone to pass only those laws that help them get re-elected. "Political branches are hard to persuade to do anything that is remotely in the interest of criminal defendants, and they are reluctant to spend money on any system that seems to be getting by, even if it's limping," said George Fisher, a law professor at Stanford University. Even after the reforms in North Carolina, defenders still carry felony caseloads of over 200 a year, or 33 percent higher than the ABA-recommended maximum.

ONE WAY AROUND THE PUBLIC-CHOICE PROBLEM is through parity: linking money for public defenders to money for prosecutors. Parity is attractive to legislatures because it "appeals to norms of labor fairness and management efficiency," said Ronald F. Wright, a law professor at Wake Forest University. Parity also has the benefit of being easy for legislators, and voters, to grasp.

The most basic and popular form of parity is in salary levels for public defenders and prosecutors. In the system in Georgia, which has just opened up 49 public defender offices, entry-level public defenders and district attorneys make the same salary: $38,124. The two pay scales continue in lock step until the highest level, where prosecutors successfully lobbied—or, in the words of Michael Mears, the head of Georgia's new public defender system, "screamed, yelled, shouted, and cried like babies"—for 10-percent higher salaries. Salary parity is also the norm in Connecticut, Kansas, Massachusetts, North Carolina, Tennessee, and Wyoming, according to a recent law review article by Wright. Federal defenders, who handle about 7 percent of all felony cases, also have salary parity, with U.S. attorneys.

By arguing for parity a number of states have also increased pay for appointed counsel. New York has about doubled its old rate of $25 an hour for counsel out of court and $40 an hour in court; Connecticut has recently made similar changes, and Tennessee and Massachusetts are close to doing so.

Salary parity is far from a miracle cure, however. Like prosecutors, full-time public defenders often view their job as a short-term stint in public service, such as going into the Army or the Peace Corps. At best, experts think parity will convince attorneys to stick around a couple of years longer than they might have otherwise. "It changes indigent defense from a five-to-seven-year job to a seven-to-nine-year job," Wright said. Marc Miller, a law professor at Emory, called it "a modest part of what's wrong with the system as a whole."

But even the best-paid defense lawyer in the country could not be effective with a caseload in the hundreds, no staff support, and no money for investigations. And newer systems such as those in Georgia and North Carolina, while they mandate salary parity, offer no similar guarantees about other resources. While those systems often have salary parity written into their bylaws, caseload caps are at best recommended and at worst given no attention at all.

TO FUND MEANINGFUL DEFENSE FOR INDIGENT CLIENTS, states need to turn to a more radical form of equality: resource parity, or the linking of total defense spending to total prosecution funding. Some states have done so successfully. In Tennessee, defense spending is roughly three-fourths of prosecution spending, and in Connecticut it's two-thirds. Both figures are substantially above the norm.

Where parity has been enacted, the results have been dramatic. As part of a class action settlement in 1999 in a case about ineffective assistance of counsel, Connecticut pledged a serious commitment to resource parity. Defense funding got an immediate boost. With the increase to two-thirds of prosecutor spending, the state hired 50 new people, including 25 lawyers, got money for more paralegals and investigators, and got computers "that actually worked," in Smyth's words. He is quick to point out that to achieve serious improvement, paying lawyers more and even hiring more lawyers would not have been enough. "A single lawyer can handle more cases and handle them better if he has an investigator and a social worker and a secretary."

Although resource parity is justifiable on many of the same fairness grounds as salary parity, supporters have found it more difficult to advocate successfully. The initial proposal for the Georgia system included such a parity system before prosecutors worked to remove it. Most prosecutors put up stiff resistance to resource parity, arguing that their offices do more work than public defenders, including researching cases that they never prosecute and prosecuting cases defended by private counsel. Plus, prosecutors worry that they'll get a dollar less for every dollar given to public defenders.

Prosecutors' complaints highlight one challenge for achieving resource parity: the difficulty of calculating it. Prosecutors have access to resources that don't appear in their budgets, such as to police and to state crime labs. On the other hand, defenders often have the ability to request funding from a court for expert witnesses, which prosecutors can't do.

But states can no longer avoid such calculations, especially with state budgets tightening and tough-on-crime laws increasing the number of criminal defendants. When recession hit four years ago and crime increased, so did the percentage of defendants who lacked the money for their own lawyers. Parity is a new, viable way for defenders to fight for funding.

"The promise of Gideon was just that, a promise," said Mears, "and it hadn't been fulfilled." If states are going to realize that promise, they need to give public defenders much more than raises. They need to give them the tools to do their jobs.

Dana Mulhauser is a student at Harvard Law School.

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