Gideon Alert: Congressional summit offers federal recommendations to stem indigent defense crisis

BY David Carroll on Wednesday, June 16, 2010 at 10:50 PM

Rep. John Conyers, Jr. (D-MI), chair of the United States House Judiciary Committee, and Rep. Robert “Bobby” Scott (D-VA), chair of the House Crime, Terrorism, and Homeland Security Subcommittee, hosted “The Constitutional Right to Counsel Summit: A Dialogue on the State Public Defense Crisis & the Federal Response" on June 15, 2010.  The Summit, moderated by  Virginia Sloan, president of the Constitution Project, and Melanca Clark, counsel at the Brennan Center for Justice at New York University School of Law, brought together a cross-section of participants in the criminal justice system, including judges, prosecutors, public defenders, and scholars. 

Our thanks to our friends at the Constitution Project for allowing us to re-print the following synopsis of the days events:

Professor Laurence Tribe, Senior Counselor for the Access to Justice Initiative at the U.S. Department of Justice, opened the discussion by reiterating the Department of Justice’s commitment to addressing the indigent defense crisis and announcing that Attorney General Eric Holder had directed him to express the Attorney General’s strong support for the use of federal money available to state criminal justice systems through the Byrne Justice Assistance Grant program to improve indigent defense programs in the states.  

Throughout the Summit, panelists stressed that too many state indigent defense systems are at the breaking point.  These systems are under-funded and their lawyers are overworked.  Too often, they fail indigent defendants.  Federal funding of law enforcement without equivalent funding of public defender offices exacerbates the situation, increasing the demand for indigent defense services without increasing the supply.  For example, Carlos Martinez, the public defender for Miami-Dade County, Florida, explained that his public defender office received $150,000 in federal grant money, while the prosecutor’s office received nearly $4.3 million, a resource imbalance that only exacerbates these problems. John Chisholm, district attorney for Milwaukee County, Wisconsin, echoed Martinez’s sentiments, noting that the system cannot work unless both prosecutors and defenders have adequate resources.  The former prosecutor in Wayne County, Michigan, Nancy Diehl, also observed that failing to provide the necessary funding for indigent defenders has a devastating impact on the ability to attract and retain high-quality attorneys, which in turn damages the entire criminal justice system. She called on the federal government to help provide the resources necessary to fairly compensate indigent defenders. 

However, panelists recognized that additional funding for state indigent defense programs is not enough. George Kendall, of counsel and director of the Public Service Initiative at Squire, Sanders & Dempsey L.L.P., noted that there would be no improvement unless states are required to meet national standards in order to qualify for federal money.  And Judge Carolyn Engel Temin, senior judge for the Court of Common Pleas in the First Judicial District of Pennsylvania, and Adele Bernhard, associate professor and co-director of the Criminal Justice Center at Pace Law School, urged the federal government to require state indigent defense systems to meet the standards of the American Bar Association’s Ten Principles of a Public Defense Delivery System

Additionally, panelists noted that over-criminalization of conduct increased the demand for indigent defense services and exacerbates the crisis.  Echoing a view shared by many of the panelists, Judge Michael Wolff of the Supreme Court of Missouri expressed concern with the public’s “appetite for punishment,” which far exceeds its willingness to pay for it.  All panelists agreed that the indigent defense crisis will not be solved as long as the criminal justice system continues to expand.

Video tape of the Summit will be available shorty.  For readers interested in other proposed federal recommendations, please see the following:

1)  Recommendations from the National Right to Counsel Committee's report, Justice Denied: America's Continuing Neglect of our Constitutional RIght to Counsel.

2)  Video from the United States House Judiciary Committee Federal Recommendations Roundtable Discussion, Detroit, Michigan (December 14, 2009)