Culture as a Structural Problem in Indigent Defense

55 Pages Posted: 24 Oct 2015 Last revised: 20 Jan 2017

Date Written: October 22, 2015

Abstract

Indigent defense lawyers today are routinely overwhelmed by excessive caseloads, underpaid, inadequately supported, poorly trained, and left essentially unsupervised. They face an avalanche of hostility every time they walk into court as judges, prosecutors, and court personnel pressure them to process their clients through the criminal justice system. Many zealous defenders simply burn out and leave the job. Of those who remain, many perform valiantly. But the sheer reality of the difficult task that these lawyers are expected to do is often overwhelming. Especially in contexts where indigent defense lawyers lack institutional support, even lawyers who wish to take their obligations seriously sometimes find themselves overwhelmed and gradually become less sensitive to the routine injustices of the system. Others become cynical and depressed and unhappily continue in the job — aware of the problems, but feeling powerless to effectuate change.

The result is a serious cultural problem in indigent defense, especially in jurisdictions where such defense is handled by lawyers lacking the community and institutional reinforcement that strong public-defender offices can provide. Consequently, many indigent defendants who go through the criminal justice system (as well as the friends and families of defendants who suffer through these ordeals with them) often feel confused, angry, and ignored. They have no faith in the system or in the legitimacy of their convictions. Rather, they experience the criminal justice system as an assembly line to prison for poor people of color.

In this essay, I will argue that attempts at reform should focus on changing this cultural problem in indigent defense delivery systems. As was true in 1961 (when the symposium that this essay celebrates was published), there is now a feeling that change is coming. Countless commissions have issued reports documenting excessive defender caseloads, a lack of independence, and blatant violations of the constitutional right to counsel across jurisdictions and making recommendations for improvement. Many states have developed bipartisan Indigent Defense Commissions to investigate best practices and implement more effective and efficient delivery systems going forward. Legislators have convened working groups and have proposed legislation to address the crisis. President Obama created the Office for Access to Justice, an initiative designed to analyze and think about how to improve indigent defense delivery systems. And symposia abound detailing the problems with indigent defense delivery systems and recommending potential solutions.

A focus on improving the culture of indigent defense delivery systems can and should infuse current reform proposals and inform change going forward. Perhaps this time, we can learn from some of our past mistakes and move toward accomplishing some of the laudable goals that many have been advocating for over fifty years.

Keywords: right to counsel

Suggested Citation

Primus, Eve Brensike, Culture as a Structural Problem in Indigent Defense (October 22, 2015). Minnesota Law Review, Vol. 100, 2016, Forthcoming; U of Michigan Public Law Research Paper No. 481. Available at SSRN: https://ssrn.com/abstract=2678214

Eve Brensike Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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