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Federally funded public defenders

Louisiana made national news this spring but not for its annual New Orleans Jazz and Heritage Festival. In preparation for his presidential primary run, Republican Governor Bobby Jindal focused for years on keeping revenues as low as possible with little regard for the consequences. Threatening everything from health care to college football, the unsurprising yet troubling budget nightmare spread slowly and predictably across state government.

That has led to a judicial crisis that is readily apparent to low-income people accused of crimes, since public defenders in some parishes have stopped taking new clients, even those who could spend years or decades behind bars. Clients who do get access to a public defender could find their counsel has so many cases that the first time they meet is at trial.

If only Louisiana were alone. More than 50 years after the Supreme Court’s unanimous Gideon v. Wainwright ruling established that our poorest citizens have an absolute right to effective representation, many other states are also unable or unwilling to honor the accused with their constitutional right to counsel.

It’s time for the federal government to affirm both the Sixth Amendment and the Gideon decision by funding state public defenders.

Responding to one state’s problem with a federal solution might seem like overkill. Yet, the public defender crisis spans states across the political spectrum, not just low-tax, conservative bastions like Louisiana.

Wisconsin pays public defenders $40 an hour for court time and $25 an hour for travel time, figures that haven’t increased since the 1970s. Someone graduating from law school with six-figure debt simply cannot afford to work for such low wages.

In liberal California, public defenders carry hundreds of cases at a time — so many that the American Civil Liberties Union has sued the Fresno County public defenders office for being unable to provide adequate representation.

The American Bar Association and the President’s National Advisory Commission on Criminal Justice Standards agree that the maximum annual caseload for public defenders should be 150 felony cases or 400 misdemeanors on the docket of a full-time attorney. In 2007, the last year that comprehensive data on this topic were collected, the government found that more than 70 percent of county-based public defender offices exceeded those limits.

Often, they far, far exceed those limits: In Florida, in 2009, for instance, the average public defender handled over 500 felonies and more than 2,200 misdemeanors. By 2013, Attorney General Eric Holder was blunt: “America’s indigent defense systems exist in a state of crisis,” he told a celebration of the 50th anniversary of the Gideon ruling.

While the situation is less grim in the Commonwealth, it could still improve. Starting next month, public defenders here will receive modest increases in pay. Unfortunately, these raises still keep attorney wages far below the market rate — and below what the Massachusetts Bar Association recommended in a 2014 study on criminal justice compensation, when the study group found that Massachusetts public defenders ranked dead last among the states in starting adjusted salary.

So why should our collective federal tax dollars bail out underfunded state public defender agencies? And why should we care in Massachusetts, which, after all, isn’t as bankrupt as Louisiana?

First and foremost, because this is a federal issue. As David Carroll, executive director of the Boston-based Sixth Amendment Center points out: The Sixth Amendment grants defendants a due process right to effective counsel, and it is the federal government’s responsibility to protect our constitutional rights. That’s why federal funding is the solution.

There is, however, another more pragmatic reason to support our proposal for those who are unmoved by the constitutional rights of indigent criminal defendants. It’s better for the entire justice system if defense counsel is not too addled by a large caseload to pay sufficient attention to a clients’ needs. Ineffective counsel is a basis to overturn a verdict. The less ability defense counsel has to prepare for a case, the more likely the case will be overturned in the future.

Also, anyone who practices indigent criminal defense in Massachusetts can tell story after story in which the prosecutor initially recommended a long jail sentence in exchange for a plea, only to see charges dismissed or reduced, or a finding of not guilty — not because of brilliant legal maneuvering, but simply because defense counsel was able to take the time to do just a few hours of research and prepare a decent argument.

Congress should create a block grant program available to all 56 states and territories that provides funds for states to pay well-trained public defenders. An average of $17 million per state and territory would go a long way toward improving access to public defenders. Each state and territory would get a minimum of $5 million, with the rest distributed according to population.

A dedicated funding stream is best to make this a reality. According to the Congressional Budget Office, increasing all taxes on alcohol to $16 per proof gallon from the current $13.50 would raise more than enough money to cover this initiative.

Politicians are notoriously hesitant to go to bat for “criminals,” or even the accused. And yet, our current Congress has on many occasions professed a great reverence for the Constitution. That reverence for our founding document is meaningless if it’s not backed up by action in the face of injustice, especially when those whose rights are violated are neither powerful nor popular.

The Sixth Amendment guarantees a right to effective counsel, period. It is our duty as Americans to ensure that all citizens get the studied, careful, zealous advocacy that they deserve when the awesome power of the state is arrayed against them.

Will Isenberg is an attorney practicing at the law firm of Grolman LLP in Boston and a former congressional aide. Tom Emswiler is a health advocate and former congressional aide based in Quincy. Follow him on Twitter @tomems8.
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