A Constitutional Violation: Public Defenders

Prepared for Kentucky State Senate by Shelby Clark

Executive Summary

Since the landmark Supreme Court Decision in Gideon vs. Wainwright in 1963, states

have been required to provide legal counsel to accused criminals who are unable to pay for their

legal representation.i The protection stems from the Sixth Amendment of the Constitution and is

presented in the Miranda rights. However, public defender programs are vastly underfunded.

Therefore, many public defenders are forced to handle caseloads well above the recommended

number and thus spend far below the recommended number of hours per case. The inefficiency

of such legal counsel leads to an inflated rate of guilty pleas and longer incarceration sentences.

This lack of funding prohibits public defenders form accurately doing their job and thus the

defendant suffers from lack of proactive legal counsel, which is a violation of the Constitution.

To ensure that Kentucky is protecting this Constitutional right, the Senate should vote on a

budget that would increase the funding for public defender programs, ensuring that those who

cannot afford legal representation are still granted a fair trial.

Policy Issue Overview

According to the 2018 Department of Public Advocacy’s Annual Caseload Report, only

3.6% of the Criminal Justice System’s budget is devoted to public defenders. ii This percentage

does not provide efficient funding to adequately staff public defender offices or cover research

and investigation costs. In 2018, each public defender in Kentucky handled on average 480 cases

each, which is 32% above the national recommendation. iii While the caseload per attorney varies

by county, every public defender office in Kentucky operates above the national average; some

offices, like the one in Glasgow, operate at over 200% of the recommended number of cases.iv
 While crime rates have decreased in Kentucky, the population below the poverty line has

increased, causing the number of public defender cases to increase by 11% from 2006 to 2015.v

Public defenders handle a large percentage of cases in Kentucky. In 2013, public defenders were

needed for 70% of the circuit court cases in Kentucky. While public defender offices have

caseloads larger than ever before, their staff has not increased. There is not enough money

allotted in the budget to allow the state to hire more attorneys, causing public defender offices to

be understaffed, which prohibits them from doing their job.

In addition, Kentucky has one of the lowest starting salaries for public defenders, which

deters lawyers from seeking such a career path. After five years, public defenders in Kentucky

earn just over $52,000, while those in the neighboring states of Virginia and Illinois earn $65,929

and $74,251, respectively. In 2015 alone, 33 public defenders left their jobs.vi Increasing public

defender programs would allow offices to increase salaries, making the job more attractive to

potential employees, while also allowing for the creation of new positions; this double solution

would eliminate staff shortages, in turn allowing for better job performance and better legal

representation for clients.

An exaggerated workload of cases harms both the public defender and the clients they

represent. Melanie Lowe, a public defender in Shelby County, admits that she sometimes only

has mere minutes to consult with her clients, causing her to sometimes make mistakes in her

cases that result in longer prison sentences.vii Having so many cases prohibits public defenders

from spending enough time reviewing each case or conducting an extensive investigation. This

quick and shallow approach to a legal defense has disastrous results on those who depend on this

free representation, often resulting in a recommendation to plead guilty (even if they are

innocent) and/or a longer incarceration sentence. This in turn creates an unfair trial.
 Courts across the nation have implemented various tactics in response to the public

defender crisis. Some judges postponed the trial dates of those who needed a public defender,

leaving defendants in extended limbo until a public defender could devote time to their case;

however, this was ruled unconstitutional.viii Some public defenders rely on family members to

donate their time to do investigation work or testify. However, these people are often untrained

and therefore cannot provide the same quality of defense that a trained lawyer could.ix Other

judges appoint private counsel; these lawyers, who specialize in private issues, such as tax law,

are vastly inept to defend someone with criminal charges.x Many studies have found that

appointed counsel is less effective than a public defender and therefore appointed counsel rarely

results in an adequate option for indigent defendants. The failure of these solutions proves that an

increase in funding is absolutely needed to alleviate issues with the public defender system.

Review of Literature

Multiple Studies have been conducted that compare the legal counsel of private attorneys,

appointed counsel, and public defenders. Hanson and Ostrom found that those represented by

private attorneys are less likely to be awarded a prison sentence.xi Cohen found that the

conviction rates and length of prison sentences of appointed counsel are substantially higher than

that of trained public defenders.xii Another study by Hoffman confirmed these results.xiii

Andersen and Heaton found that public defenders had lower conviction rates and shorter

sentence length when compared to appointed counsel.xiv

These studies do not provide a comprehensive comparison of the different types of legal

counsel. Since each case is individualized, it is hard to adjust for variables like the nature of a

crime. Many of these studies only look at two different types of counsel, not all three. Many of

these studies are based in small geographic areas, such as a certain state. A study that compared
all three types of legal counsel across the nation would provide more concrete evidence of the

issues in the public defender system.

These studies prove that while private council is often most effective (they typically have

the money to support more investigations and other legal resources), public defenders are much

better at defending the accused indigent then appointed counsel. Since appointed counsel is a

solution developed in response to a shortage of public defenders, increasing the budget for public

defender programs would alleviate this need for appointed legal counsel. Of course, this would

not fix the discrepancy between public and private legal counsel, but that too could possibly be

alleviated with an even bigger increase in funding.

Action Plan

The root of the problems surrounding the current public defender system in the United

States stem from a lack of funding. Passing a budget that allocated more money to public

defenders would decrease the caseload of each attorney and increase the time and effort they

could spend on each case. If the state increased spending for public defense the same percentage

that they increased spending for prosecution, this would allow for a more balanced court system.

However, a budget increase for public defenders is a hard win because many legislators stand on

a “tough on crime” platform.xv

While altering the budget to allow for more funding for public defenders would alleviate

many issues, there are other avenues for positive change. Decreasing the number of minor cases,

through means such as legalizing marijuana, would drastically decrease the number of cases

where public defenders were needed, allowing them to focus on more serious criminal charges.xvi

While something as drastic as the legalization of weed might be too large and controversial to

use as a solution to the public defender issue, legalizing it through other avenues could have a
positive side effect on public defender programs. Many public defenders, in addition to

increasing the state budget, support reclassifying minor misdemeanors to violations, raising the

felony limit for theft to $2,000, and issuing parole for minor violations and low risk offenders; all

these amendments to the penal code would save the state money and reduce the caseload of

public defenders.xvii

An increase in funding would allow more public defender offices, which would be able to

serve smaller areas of the state, saving time and money. Some public defender offices have a

jurisdiction of four or more counties. Thus, they spend a lot of time and money travel to meet

with clients or attend court. If a larger budget was passed, Kentucky could fund 57 public

defender offices instead of the current 33. This would decrease the amount of travel time for

public defenders and would make the caseload more equal throughout the state.xviii

Conclusion

In order to comply with demands set forth by the Constitution, all United States Citizens

must be granted a fair trial. This means that the Sixth amendment protects those that cannot

afford legal counsel by appointing public defenders to represent them. The current public

defender system is over worked, underfunded and understaffed, inhibiting them to correctly and

efficiently do their jobs and civic duty. Thus, the lack of funding for these programs is

unconstitutional. To stop this crime, Kentucky’s Senate must allocate more of the budget to fund

public defenders and their defense of our nation’s poorest criminals.

All endnote citations are done in Chicago style.

i
"Gideon v. Wainwright." Oyez. Accessed November 7, 2018. https://www.oyez.org/cases/1962/155.
ii
United States. Public Defenders Protection & Advocacy. Department of Public Advocacy. ANNUAL CASELOAD
REPORT FISCAL YEAR 2018. 2018. Accessed November 7, 2018. https://dpa.ky.gov/News-and-Public-
Information/Documents/annual report18.pdf.
iii
Department of Public Advocacy.
iv
Department of Public Advocacy.
v
Goetz, Kristina. "Ky Public Defenders: Thin Ranks, High Risks." Courier Journal. November 19, 2015. Accessed
November 7, 2018. https://www.courier-journal.com/story/news/crime/2015/11/19/kentucky-public-defenders-
risks/76046976/.
vi
Goetz.
vii
Goetz.
viii
Robertson, Campbell. "In Louisiana, the Poor Lack Legal Defense." The New York Times. March 19, 2016.
Accessed November 08, 2018. https://www.nytimes.com/2016/03/20/us/in-louisiana-the-poor-lack-legal-
defense.html.
ix
Ewing, Maura. "How Prisoners' Family Members Can Assist Overworked Public Defenders." The Atlantic. March
20, 2018. Accessed November 08, 2018. https://www.theatlantic.com/politics/archive/2017/07/a-replacement-for-
overworked-public-defenders/532476/.
x
Robertson.
xi
Hanson, Roger A., Brian J. Ostrom, William E. Hewitt, and Christopher Lomvardis. Indigent Defenders: Get the
Job Done and Done Well. Report. Williamsburg, VA: National Center for State Courts, 1992. Accessed November
7, 2018. https://ncsc.contentdm.oclc.org/digital/collection/accessfair/id/19/.
xii
Cohen, Thomas H, David L Myers, and Emmaleigh Kirchner. "Who Is Better at Defending Criminals? Does Type
of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes." Criminal Justice Policy Review 25,
no. 1 (2014): 29-58.
xiii
Morris B. Hoffman; Paul H. Rubin; Joanna M. Shepherd, "An Empirical Study of Public Defender Effectiveness:
Self-Selection by the Marginally Indigent," Ohio State Journal of Criminal Law 3, no. 1 (Fall 2005): 223-256
xiv
Anderson, James M., and Paul Heaton. "How Much Difference Does the Lawyer Make? The Effect of Defense
Counsel on Murder Case Outcomes." The Yale Law Journal 122, no. 1 (2012): 154-217.
xv
Franklin, Howard. "The Public Defender Crisis, Part II: Possible Solutions." Publicdefenders.us. July 19, 2016.
Accessed November 07, 2018. https://www.publicdefenders.us/blog_home.asp?display=83.
xvi
Franklin.
xvii
Goetz.
xviii
Goetz.