Public defenders are notoriously overworked, underpaid, and constantly juggling an overwhelming caseload. As a startling New York Times story found this past January, one attorney in Louisiana was working 194 felony cases, while another was balancing 413. Public defenders in certain places are often fielding two to five times the cases they can effectively handle, according to the piece. And they’re doing it for pay that’s far from comparable for the work.
Kamala Harris, a long-time prosecutor and current 2020 candidate, wants to take a first step toward fixing this.
Earlier this month, Harris introduced a bill aimed at limiting public defenders’ workload and increasing their pay to be comparable with that of prosecutors. This week, Rep. Ted Deutch (D-FL) is offering a companion bill in the House.
Harris’s proposal, dubbed the Equal Defense Act, is significant: The conversation about criminal justice reform has long omitted public defenders from the discussion, and this bill seeks to change that. Additionally, it’s politically savvy: Harris has been criticized for her past record as a prosecutor, and this bill demonstrates an effort to aid those who are often on the other side of the courtroom.
Thus far, the legislation has been widely lauded among members of the public defender community, garnering the backing of the National Legal Aid & Defender Association, the NAACP Legal Defense Fund, and the ACLU. At its core, the bill aims to make sure public defenders are fairly compensated and treated by the states and counties that employ them, thereby ensuring that those who rely on them are more fairly represented in their cases.
“It is a constitutional right in our country that every American accused of a crime has the right to counsel; unfortunately, that right is being threatened by under-resourced public defender’s offices,” Deutch said in a statement.
Experts note that the bill only marks the beginning of an expansive effort to curb the inequities that public defenders experience. But, they emphasized, it’s playing a key role in raising the profile of the problem.
“I am hopeful that this Act prompts us all to continue to understand public defenders as a critical piece of the criminal justice solution, and to build on its important foundation to ensure marginalized communities have the advocates necessary to fulfill our democratic promise of equal justice,” says John Rapping, a Harvard law professor who founded Gideon’s Promise, an organization that backs the bill.
What the Equal Defense Act would do
The Equal Defense Act would give state and local governments additional funding to close the pay gap between public defenders and prosecutors.
The bill authorizes $250 million in grants, with the goal of eliminating the pay gap between the two roles over the course of five years. That gap varies widely in offices across the country, and it can be huge: One Oregon study found, for example, that entry-level public defenders in one county were paid more than $24,000 less than entry-level prosecutors.
Access to these grant funds would have strings attached: if states were interested in the money, they would have to agree to limit public defender caseloads and gather data that tracks how much they’re working. The bill would also increase the amount of money authorized for student loan repayment for public defenders, from $25 million to $75 million.
One potential stumbling block for the bill might be congressional gridlock: This legislation would authorize Congress to dole out the money, but the actual spending would need to be approved via the standard appropriations process for the Justice Department, a Harris aide told Vox. That could wind up being difficult, given how thorny changes to appropriations has become in recent years.
Even if it doesn’t move forward, the bill is significant, says ACLU senior legislative counsel Kanya Bennett.
“This is a good step to elevating the issue. The right to counsel is often on the back-burner when it comes to federal conversations about criminal justice reform,” she says.
Fordham law professor John Pfaff also noted the bill’s symbolic importance.
“It’s going to put this issue of this disparity much more in the national radar,” he says. “As a proportion of overall spending, it’s not a huge amount, but it is one of the first major federal efforts to turn our attention to public defenders.”
That spotlight, they both emphasized, is crucial to spurring broader discussions of reform down the line.
Harris’s plan is seen as a piece of a larger overhaul
Because of how much the US criminal justice system has prized strong prosecutors — and a focus on so-called “law and order” in the past — public defenders have been systematically undervalued ever since their roles were established as part of a Supreme Court decision in 1963’s Gideon v Wainwright.
As part of that decision, the court concluded that every individual charged with a crime had a right to legal representation, even if they couldn’t afford it. There was limited direction, however, about how to implement defendants’ right to counsel.
“The Supreme Court said you would have to do this, but provided no guidance how,” Pfaff says.
Since then, things haven’t gotten much clearer. Roughly half the states have centralized state-run public defender offices, for example, while the other half operate systems on a county-by-county basis. Additionally, many public defenders’ offices operate on budgets far lower than those that prosecutors use.
A lack of centralization in some states — and on the federal level — has meant that public defenders’ rights can be overlooked by legislators, many of whom are more likely to be former prosecutors themselves. “A more centralized office would give public defenders more of that political power to push back against prosecutors,” Pfaff says.
Public defenders would also benefit from having a person as powerful as the attorney general advocating on their behalf at the federal level, notes Bennett. An office in the DOJ was previously established to help defendants obtain access to legal aid, though it was effectively shuttered after Jeff Sessions took over as attorney general in 2017.
Overworked public defenders mean defendants who don’t have sufficient representation
The lower salaries and overwhelming workloads that public defenders deal with has a whole host of consequences. For one, it can deter talented lawyers from pursuing this route, simply because it isn’t financially sustainable. Additionally, it could mean that countless clients aren’t getting the type of representation they need because their lawyers are stretched so thin.
“The system is not allowing us to provide competent representation,” Edward Monahan, head of the Kentucky Department of Public Advocacy, previously told the Wall Street Journal, when sweeping budget cuts were hitting public defenders’ offices in 2011. As Vox’s German Lopez previously reported, some public defenders were so busy that they only had seven minutes to prepare for each client’s case.
Beyond independent case outcomes, the problems facing public defender offices are emblematic of a deeper issue within the US criminal justice system, which has prioritized incarcerating individuals who are convicted of crimes. With more people heading to court in need of representation, public defenders’ caseloads have simply grown larger and larger.
Harris’s bill could provide some remedy to the increasing untenable situation, though it’s no sweeping fix, Bennett says.
“We are talking about a band-aid on a piece of the criminal justice system in need of absolute overhaul,” she notes. Still, she adds, it’s a proposal that has finally gotten people to acknowledge the issue at all.