Dispatches from the Creation Wars

Clay Conrad has a very important article in the recent blockbuster edition of Reason magazine that looked at nearly every appalling aspect of America’s criminal (in)justice system, a system that I firmly believe is broken from top to bottom. Conrad’s article looks at the public defender system, which is nothing less than a tragedy come to life.

Public defenders are often forced to take on caseloads heavier than any lawyer can competently or ethically handle. According to a 2005 report commissioned by the Missouri Bar, caseload, more than any other factor, determines which public defender offices do good work and which do not. No lawyer, no matter how skilled, can do a competent job on 200 felony cases a year. In some public defender offices, the caseload is more than twice that.


This actually understates the case considerably. As I reported in 2009, a study by the National Legal Aid and Defender Association and the Michigan Bar Association found that the city of Detroit has five part-time public defenders, and they handle an average of 2400-2800 cases per year. Justice isn’t even hypothetically possible under such circumstances.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are “pled out” without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.

Some clients, of course, are just guilty. They are caught on videotape; they confessed; their crimes are established by DNA, fingerprints, or the testimony of a victim who can describe something unique about them. Their crimes are unsympathetic, so there’s little hope for jury nullification. Those cases can and should be settled with a plea agreement that gives the defendant the best result that can be negotiated.

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

Public defenders are often strapped for resources. Investigators, experts, computer animations, and laboratory tests cost money, sometimes a lot of money. Without such resources, innocent people can be convicted, something that happens more often than most of us want to believe. The work of the Innocence Project has led to the exoneration of hundreds of individuals based on DNA testing that was once considered too expensive or esoteric to perform in “routine” cases. An indigent defendant faces a Catch-22: Until a scientific test is performed and the results prove helpful, he cannot show he has a due process right to the funds necessary to perform the test.

If the Sixth Amendment is to mean anything at all, we must fix this broken system. We need a federal solution, not a piecemeal state solution (or, in the case of Michigan, a county-by-county and sometimes judge-by-judge system). And it must be funded adequately. If we give a damn about wrongful convictions and justice, we will give public defenders the resources necessary to do their job competently. The fact that we continue to ignore this problem only indicates that we don’t take that responsibility seriously.