The Appointment of Counsel to Indigent Defendants Is Not Enough: Budget Cuts Render the Right to Counsel Virtually Meaningless
Forty-five years ago, in Gideon v. Wainwright,
372 U.S. 335 (1963), the Supreme Court recognized that the Sixth Amendment to the United States Constitution guarantees all indigent criminal defendants the right to a lawyer at the state’s expense. Justice Black, writing for the Court, explained the rationale behind a criminal defendant’s right to counsel as follows:
[R]eason and reflection requires us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.. . . Government, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.1
The Court explicitly expanded the right to counsel in state courts to defendants charged with misdemeanors seven years later in Argersinger v. Hamlin,407 U.S. 25 (1972). Justice Powell, recognizing the new burdens on the criminal justice system, noted in his concurring opinion that the “decision could have a seriously adverse impact upon the day-to-day functioning of the criminal justice system.”2 Justice Burger’s concurring opinion, however, expressed confidence that the legal profession could meet the challenge: “The holding of the Court may very well add large new burdens to a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it.”3
Although the Court’s mandates to provide counsel to indigents charged with felonies and misdemeanors led to a rapid increase in criminal defense work, the Court provided no guidance or models for organizing or funding the states’ indigent criminal defense systems. The Court gave the states broad discretion to fashion policies and laws to effectuate the overall goals of effective assistance of counsel and fair trials. Consistent with the Court’s dedication to federalism, states were free to adopt whatever system they wished. In response to the Gideon mandate, the Florida Legislature created public defender offices in each of Florida’s judicial circuits.
The Supreme Court subsequently extended the Sixth Amendment right to counsel to include effective assistance during all critical stages of the proceedings against indigent criminal defendants.4 The Court also guaranteed the right to counsel to indigent defendants during the first appeal of a criminal conviction.5 However, it took the Court an additional 22 years to guarantee effective assistance of counsel on that same first appeal.6
Due in part to the fact that the Court never gave any direction to the states with regard to funding indigent criminal defense, the public defender offices around the country consistently have budgetary problems and overwhelming caseloads. The National Advisory Commission (NAC) on Criminal Justice Standards and Goals, Task Force on Courts, Ch. 13, The Defense (1973), recommended that full-time public defenders not accept more than 150 felony cases during a year; not more than 400 misdemeanor cases; not more than 200 juvenile cases; and not more than 25 appeals. The NAC caseload standards were adopted by the National Legal Aid and Defender Association and also by the American Council of Chief Defenders. While the ABA Standards Relating to Providing Defense Services do not endorse specific caseload limits, it does state that defenders should not “accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.”7
In 2006, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-441 in response to the numerous crises in public defense systems across the country.8 Opinion 06-441 advises public defenders9 to refuse to accept new clients or to withdraw from existing client relationships when excessive caseloads interfere with their ability to provide all of their clients with the high standard of representation provided in the ABA’s Model Rules of Professional Conduct.10 Model Rules 1.1, 1.3, and 1.4 specifically direct that a lawyer shall provide competent, diligent representation to a client, and shall consult with the client and keep the client properly informed about the case.11 In pertinent part, Opinion No. 06-441 states:
If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new assignments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.
The opinion advises the lawyer who represents indigent defendants through a public defender’s office or law firm to use three options to reduce his or her caseload: 1) transfer “nonrepresentational responsibilities” (including managerial responsibilities) to others within the office; 2) refuse new cases; and 3) transfer current cases to another lawyer within the office who can reasonably handle additional cases.12
The opinion additionally addresses the ethical obligations of lawyers who supervise public defenders. It states that supervisors must monitor their subordinates’ caseloads, in order to comply with Model Rule 5.1, which, in part, requires supervising lawyers to ensure that their subordinates provide competent representation to clients.13 If a supervising lawyer learns that a subordinate lawyer is carrying an excessive caseload, the supervisor, according to the opinion, should work to secure a more manageable workload for that lawyer. The opinion provides three options to the supervisor: 1) re-assigning the subordinate lawyer’s nonrepresentational duties or cases to others in the office; 2) supporting the subordinate lawyer’s efforts to withdraw from representation of a client, if no other lawyer within the office can take on that case; and 3) if the court denies the lawyer’s request to withdraw, providing the subordinate lawyer with any available additional resources that would help the lawyer to provide competent and diligent representation.14 The mandate of Opinion No. 06-441 to lawyers who represent indigent defendants to make their workloads more manageable is similar to the Gideon court’s mandate to the states to provide counsel to indigent criminal defendants. Neither mandate provides guidance when the available funding is grossly inadequate to accomplish the stated goals.
Like most public defender offices, Florida’s public defender offices are at the mercy of government funding. Florida’s public defender offices are so under-funded and under-staffed that it is virtually impossible to adequately and completely fulfill the scope of representation to indigent defendants as defined by law. In accordance with Opinion No. 06-441, in June 2008, the Miami-Dade Public Defender’s Office filed a motion to stop accepting new noncapital felonies.15 This caseload challenge is, perhaps, the most significant challenge since Opinion 06-441 was issued in May 2006. Veteran criminal defense attorney Milton Hirsch was interviewed for an article in the June 27, 2008, edition of the Daily Business Review. Hirsch, a former Miami-Dade prosecutor, opined that the refusal of the Miami-Dade Public Defender’s Office to accept new noncapital felony cases was one of the few practical options left to a public defender’s office drowning in cases. “It would be wrong for them to do otherwise,” said Hirsch. “This is a decision that’s justified on a plain and simple command of the Sixth Amendment: Thou shalt provide effective assistance of counsel.”16
On September 3, 2008, 11th Circuit Court Judge Stanford Blake ruled that the Miami-Dade Public Defender’s Office could stop accepting new third degree felony cases, but would have to continue taking new first and second degree felony cases. Judge Blake stated: “[T]he evidence clearly establishes that PD-11 is in need of relief sufficient to ensure that the assistant public defenders are able to comply with the Florida Rules of Professional Conduct and carry out their constitutional duties,”17 adding that
the testimonial, documentary, and opinion evidence shows that PD-11’s caseloads are excessive by any reasonable standard. As a result, its attorneys are able to provide, at best, minimally competent representation in their assigned cases.. . . It is incumbent upon the court to preserve order in the criminal justice system to ensure the safety of this community.18
The State of Florida immediately appealed, and on November 7, 2008, the Florida Supreme Court dismissed the cause for lack of jurisdiction, remanding the cause to the Third District Court of Appeal for a ruling.19 The Third District subsequently issued a stay of the trial court’s decision and were to hear arguments on the issue in March 2009. Given the magnitude of the case, in all probability, the Third District will issue an expedited ruling.
With regard to the Miami-Dade public defender’s caseload challenge, Norman Lefstein, a professor at the Indiana University School of Law-Indianapolis, and an expert on criminal justice, was quoted in a recent New York Times article: “In my opinion, there should be hundreds of such motions or lawsuits. I think the quality of public defense around the country is absolutely deteriorating.”20 Professor Lefstein opined that unless states spend more on lawyers, the courts will force lawyers to delay trials or, as happened in a few cases already, threaten to drop charges against unrepresented defendants.21 The most immediate impact of the rushed justice, Professor Lefstein said, is that innocent defendants may feel pressure to plead guilty or may be wrongfully convicted, thus, leaving the real offenders untouched.22
Retired Miami-Dade Public Defender Bennett H. Brummer and current Public Defender Carlos Martinez stated in a December 2, 2008, letter to Miami-Dade Chief Judge Joseph Farina that the 96-lawyer public defender’s office, assigned between 1,000 and 1,500 new third degree felonies a month, was “at the breaking point” due to the heavy caseload.23 The letter stated that the public defender’s staff no longer had the ability to “effectively investigate cases, meet with clients, locate and interview witnesses, take depositions, and otherwise prepare for trial in a timely manner.”24 The letter noted that mounting caseloads and a freeze on raises for attorneys had doubled the turnover in the public defender’s office, and that state budget cuts precluded the hiring of new attorneys.25
The woefully inadequate funding of the Miami-Dade Public Defender’s Office has been a source of concern for many years. More than 11 years ago, Brummer spoke on the subject during a keynote speech at the Criminal Law Symposium. In a law review article based upon his speech, Brummer eloquently wrote:
Underfunding of Florida’s public defenders has been recognized as a statewide problem and has been the subject of litigation and Supreme Court decisions for  years. Six of Florida’s  elected public defenders, because of their professional standards, have found it necessary to withdraw from cases or receive support to supplement their inadequate state budgets. Inadequate indigent defense in state courts is a nationwide problem of such magnitude that it has drawn personal commitment and numerous comments from the Attorney General of the United States (citations omitted).
The plight of higher crushing caseloads and departing attorneys is not new or unique to the Miami-Dade office. Four years ago, the Broward County public defender felt compelled to forbid his attorneys from advising indigent criminal defendants to plead guilty unless they have had “meaningful contact” with their clients in advance. The head of the office candidly stated that public defenders are often ill-informed about their clients’ cases and circumstances before advising them to take pleas offered by prosecutors at arraignment. “It’s not fair to make life-altering decisions while handcuffed to a chair with  people standing around.. . . They meet with an attorney for  seconds, then they plead guilty and surrender their rights.. . . That’s going to stop,” the director stated.26
The Fifth Circuit Public Defender’s Office is also concerned that budget cuts to its office could be jeopardizing indigent defendants’ right to a fair trial. In a memo last month to The Florida Bar, the agency called its attorney caseloads “oppressive,” with cuts pushing the office to “a breaking point.” The memo added: “We are being drawn and quartered by the fiscal constraints of continued budget cuts.” “Office morale is at an all time low, and it has become a ‘top down’ phenomenon.”27
Florida Public Defender Association President Howard Babb, in a January 13, 2009, letter to Governor Charlie Crist, aptly stated as follows:
While Florida’s public defenders understand the [l]egislature’s need to make difficult financial decisions during tough times, public defenders around the state have struggled with inadequate funding for years, but the extreme reductions we have suffered over the past 18 months have brought us to the breaking point. We now find ourselves questioning whether we can continue to properly perform our constitutional and ethical duties to effectively represent indigent defendants. We are genuinely concerned that we are at the point of violating the standards of our profession.28
Clearly, the right to effective assistance of counsel is one of the most important fundamental rights that citizens of the U.S. possess. Unless immediate action is taken to rectify the problems plaguing Florida’s public defender system, the rights of Florida’s indigent defendants will continue to remain in jeopardy.
In Griffin v. Illinois, 351 U.S. 12, 19 (1956), Justice Black remarked that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” The constitutional guarantees, enumerated and implied, do not differentiate between the rich and the poor. The 14th Amendment specifically provides that “[a]ll persons born or naturalized in the United States shall be accorded its protections.”29 The poor are not accorded less protection, as the Constitution fully protects any person who faces the risk of losing life, liberty, or property.30 Poverty should not play a role in criminal justice. In reality, however, poor defendants are not on equal footing with rich defendants who have the ability to purchase the very best criminal defense. State funding of Florida’s public defender system, as is true in other states, is completely inadequate to assure adequate representation to indigent defendants. Consequently, the public defender offices in Florida consistently operate in crisis mode. They are unable to handle the excessive caseloads and are barely able to function. It is, therefore, difficult for Florida public defenders to provide adequate, effective assistance of counsel to all of their clients as the Sixth Amendment demands.
Reducing excessive caseloads is only one of the many adjustments that must be made to ensure adequate representation for all indigent criminal defendants. Funding and available resources must also be increased. Public defenders must also receive fair and adequate compensation in order to attract and retain talented attorneys. Additionally, adequate support staff and sufficient funds for litigation expenses, such as expert witness fees, must be provided.
The problem of inadequate funding for indigent criminal defense is clearly not unique to Florida. Although the Gideon court declared that the constitutional command of ensuring the right of indigent defendants rests with the state, neither the Gideon court nor its progeny prescribed a method by which states should administer or pay for indigent defense programs. Until each and every state is able to adequately fund its indigent defense programs, the Gideon court’s mandate of providing protection for indigent defendants will remain nothing more than an unfunded and unfulfilled lofty mandate. Bennett Brummer summed up his worries as follows: “If we are going to maintain ourselves as a democracy and free society, we better be concerned. We are all in this together.”31 With regard to his retirement after 32 years of serving as Miami-Dade public defender, Brummer stated that he was not leaving the job on a high note.32
Given the grossly inadequate funding of its public defender offices, Florida, has a very long way to go before Gideon’s promise can ever be fulfilled.
1 Gideon v. Wainwright, 372 U.S. 335 (1963).
2 Argersinger v. Hamlin, 407 U.S. 25 (1972).
3 Id. at 44 (Burger, C.J. concurring).
4 Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogations); United States v. Wade, 388 U.S. 218 (1967) (pretrial identifications and/or lineups); Mempa v. Rhay, 389 U.S. 128 (1967) (probation revocation hearings); Coleman v. Alabama, 399 U.S. 1 (1970) (preliminary hearings); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (parole revocation proceedings).
5 Douglas v. California, 372 U.S. 353 (1963).
6 Evitts v. Lucey, 105 S. Ct. 830 (1985).
7 See ABA Standards for Criminal Justice: Providing Defense Services (3d ed. 1992), Standard 5-5.3, available at http://www.abanet.org/crimjust/standards/defsvcs_blk.html#5.3.
8 See ABA Committee on Ethics and Professional Responsibility, Formal Op. 06-441 (2006), available at http://www.abanet.org/cpr/06_441.pdf.
9 See ABA Formal Op. 06-441 at n.3.The opinion uses the term “public defender” to refer to all lawyers who represent indigent defendants, both those who work as part of a public defender’s office and those who are assigned to indigent cases through other means, such as through a law firm or by court appointment.
10 Id. at 1. The ABA House of Delegates promulgated the Model Rules of Professional Conductin 1983.The model rules have been amended several times. The model rules serve as an ethical model for the states concerning the legal profession and have been adopted in some form in 46 jurisdictions throughout the United States. See ABA, Model Rules Of Prof’l Conduct pmbl. (2004), http://www.abanet.org.
11 See Model Rule 1.1 (2006) (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”); Model Rule 1.3 (2006) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”); Model Rule 1.4(a) (“A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent…is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”); Model Rule 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”). Although Formal Opinion 06-441 does not specifically mention it, provisions of the ABA model rules related to conflicts of interest are also implicated when a defender has an excessive number of cases. Model Rule 1.7(a)(2) prohibits representation of multiple clients (i.e., a “concurrent conflict of interest”) when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client….” The Florida Supreme Court has aptly stated:“When an attorney representing indigent defendants is required to make choices between the rights of the various defendants [being represented], a conflict of interest is inevitably created.” See In Re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1132 (Fla. 1990).
12 ABA Formal Op. 06-441 at 2.
13 Id. Model Rule 5.2 specifically provides that a “subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisor lawyer’s reasonable resolution of an arguable question of professional duty.”
14 ABA Formal Op. 06-441 at 3.
15 The pleadings and September 3, 2008, trial court order may be found on the 11th Circuit Public Defender’s Office Web site, see www.pdmiami.com/ExcessiveWorkload/Excessive_Workload_Pleadings.htm.
16 Billy Shields, State Budget Public Defender’s Office Asks to Drop Cases, Daily
Business Review, June 27, 2008.
17 Order on Motion to Appoint Other Counsel (Sept. 3, 2008) at 5, available at http://www.pdmiami.com/Order_on_motion_to_appoint_other_counsel.pdf.
18 Id. at 6.
19 See Florida Supreme Court Case No. 08-1827; Order Dismissing Certification for Lack of Jurisdiction, (Nov. 7, 2008), available at www.pdmiami.com/ExcessiveWorkload/FSC_11-07-2008_Order_Dismissing.pdf; Order Denying all Motions as Moot Because of Lack of Jurisdiction, (Nov. 7, 2008), available at www.pdmiami.com/ExcessiveWorkload/FSC_11-07-2008_Order_Denying_Motions.pdf.
20 Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, The New York Times, Nov. 9, 2008, available at http://www.nytimes.com/2008/11/09/us09defemder/html.
23 See Jan Pudlow, 11th Circuit PD Says His Office Is at “The Breaking Point,” The Florida Bar News, Jan. 15, 2009, at 1, available at /DIVCOM/JN/jnnews01.nsf/cb53c80c8fabd49d85256b5900678f6c/cfdc482f56dc686285257536004fa5ac?OpenDocument.
26 See Dan Christensen, No More Instant Plea Deals, Says Public Defender, Daily Business Review, June 6, 2005, available at http://www.law.com/jsp/article.jsp.
27 See Suevon Lee, What Is the Breaking Point for Public Defender’s Office? Star Banner, Oct. 6, 2008.
28 See Kim MacQueen, State Attorneys, PDs Still Stretched Thin “We’re Prosecuting More Cases with Less People and Less Money,” The Florida Bar News, Feb. 1, 2009, p. 1.
29 U.S. Const. Amend. XIV, §1.
30 The Declaration of Independence states, in pertinent part: “all [persons] are created equal” and as such are entitled to the same protection under its laws. See The Declaration of Independence, para. 2 (U.S. 1776).
31 See Michael Williams, Lack of Money May Be the Biggest Injustice of All, Dec. 17, 2008, http://cbs4.com/local/Judicial.System.Recession.2.889967.html.
Roberta G. Mandel is a partner and head of the appellate department at Stephens, Lynn, Klein, LaCava & Puya, P.A. She previously served as an assistant attorney general for the State of Florida. Ms. Mandel has personally argued more than 850 appeals in the state and federal court systems and has over 530 published opinions. She is a member of the Executive Council of the Appellate Practice Section, an assistant editor of The Record, the journal of the Appellate Practice Section of The Florida Bar, and the vice chair of the Appellate Court Committee of the Dade County Bar Association.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.