Defending the Damned on the Cheap: Do Public Defenders Deserve Bigger Budgets?

Via Gideon, Radley Balko has a book review at Reason in which he argues that public defender offices, far from deserving scorn, arguably deserve bigger budgets in light of what we've learned from dozens of recent DNA exonerations about how innocent people come to be convicted.

Yes, that's a senior editor at Reason magazine, the small "l" libertarian bastion, calling for increased spending on a government program. (I've been scanning science articles on Google News ever since looking for the inevitable story about genetically engineered, winged pigs.) Writes Balko:

underfunding, coupled with the threat of mandatory minimum sentences and an increase in the number of crimes on the books, results in an overwhelmingly high number of plea-bargained admissions of guilt, as prosecutors look to pad conviction rates and defense attorneys have no choice but to slough off burdensome caseloads. A 2005 report from the Texas Office of Court Administration, for example, found that less than 1 percent of felony cases in Texas ever make it to trial. The rest are resolved by plea bargains. The federal courts aren’t much better: Only about 10 percent of felony cases go to trial. In state courts across the country, it’s 7 percent.

“I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented,” the federal appeals court judge Richard Posner writes in his 1999 book The Problematics of Moral and Legal Theory. But Posner, chief judge of the U.S. Court of Appeals for the 7th Circuit and one of the country’s most renowned legal scholars, isn’t much bothered by this. “If we are to be hardheaded we must recognize that this may not be entirely a bad thing,” he says. “The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendant may be optimal.”

Posner’s position is widely shared. Indeed, most advocates of limited government would probably instinctively resist the idea of devoting more public resources to the legal representation of indigent defendants. But perhaps it’s time to reconsider that resistance.

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.

Of course, in most of Texas indigent defendants are represented by private attorneys, who in some cases are paid more for entering into a plea bargain than for seeking a dismissal of the case!

Balko quotes Judge Posner declaring that poor-quality indigent defense may not be a bad thing "if we are to be hardheaded." What he left unsaid is that to be hard-headed about providing quality defense counsel, we must simultaneously be hard-hearted toward innocent people caught up in the system who do not receive a zealous defense.

There is little middle ground here - the overarching design of the adversarial system assumes each defendant receives an attorney's competent and zealous representation, but at the micro-level, underfunding thwarts that goal and makes mockery of claims to sure justice. Since Posner wrote those words at the end of the last century, advancements in DNA technology and the resulting exoneration of more than 200 people (so far) put the lie to his assumption that our system has "reduce[d] the probability of convicting an innocent person to a very low level."

Much has changed since then. We now know to a certainty that eyewitnesses frequently misidentify suspects who they didn't know previously, and that the failure to use "double blind" lineups can cause police assumptions to influence witnesses. We know that crime labs make errors and that forensic science is not the same as objective science. We know that informants will lie to reduce culpability for their own crimes, and that the average person only recognizes a lie when it's told to them about half the time, including prosecutors, judges and jurors.

Finally, as Balko points out, we know that public defenders and private counsel for indigent defendants are underfunded and frequently fail to adequately vet the system for flaws.

All of the primary reasons for wrongful convictions - faulty eyewitness testimony, mendacious snitches, sloppy crime lab work, slacker defense counsel, police or prosecutorial misconduct - inarguably occur in other cases besides the few where DNA evidence was gathered or preserved. (Jeff Blackburn, Chief Counsel at the Innocence Project of Texas, tells me he expects more exonerations to come before the Texas Legislature reconvenes in January 2009.) With more than 150,000 adults incarcerated in Texas prisons alone (more than 2 million nationwide), who believes the same flaws in the justice system haven't trapped hundreds or even thousands more people whose names were never cleared?

We need procedural reforms in all these areas, but Balko's right that the one element holding them all together is quality defense counsel. Creating new procedural tools to protect innocence won't help if defendants' lawyers don't aggressively avail themselves of them.

When even Reason magazine thinks government is underspending on one of its functions, it's hard not to think we might have reached a tipping point in regards to changing public perception in the wake of 200+ DNA exonerations.