The Court is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending

Abstract

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009. Redistributive policies – those which use tax payer funds to support individuals who themselves pay little or no tax – are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. We attribute this apparent stability to two general explanations. First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation. And second, the characterization of indigent defense itself as redistributive seems faulty. Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight. The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele – the lawyers.

Keywords: Indigent defense, Recession, COVID-19, Coronavirus, Budgets, Access to counsel, Local government