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Public Defense Systems: Underfunded and Overburdened

From Democratic-leaning states like Oregon, through swing states like Pennsylvania and into deep-red states like Mississippi, a national movement is gathering momentum for public defense reform, as states are finding ways to close the gap between the ideal of the constitutional right to counsel and reality in place on the ground, write Rebecca Silber and Julia Durnan of Arnold Ventures. The movement is reflected by cases such as the one of Maurice Jimmerson in Albany, Ga. Jimmerson was arrested a decade ago for a double murder alongside four others, two of whom were acquitted by a jury in 2017, however, Jimmerson has yet to have a trial despite his constitutional right to a speedy trial. Advocates attribute this delay at least in part to numerous failures in the state’s overburdened and underfunded public defense system. Compared to all of the resources provided to prosecutors, public defense systems receive significantly less. In some jurisdictions, this means that defendants may have to wait months or even years to have an attorney assigned to their case or to go to trial. In others, a public defender may be forced to spend as little as seven minutes on a case.

The public defense crisis is financially self-defeating: Research shows that effective defense early in a case can lead to savings related to unnecessary detention and overly long sentences; a person who receives an effective defense is less likely to be incarcerated at the taxpayers’ expense. To address the public defense crisis, states should take note of two important criteria, say Silber and Durnan: First, the reforms must be structural. Small funding increases for public defense that leave geographic, racial, and economic disparities otherwise intact are insufficient. Public defense reforms need to create state support for a comprehensive public defense system that upholds the constitutional right to counsel, provides access to a zealous defense, and ensures that protection from the power of the state is not limited to just the wealthy. Second, structural reforms should be predicated on and paired with robust data collection. Much more information is needed to understand how public defense operates, where non-representation occurs, and how a lack of access affects people and communities. Overall, access to an adequate defense is critical to securing constitutional rights to liberty, due process, and equal protection.


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