Ineffective Indigent Defense System Fuels Mass Incarceration, Brennan Center Report Says

April 9, 2013

by Jeremy Leaming

It’s been 50 years since the U.S. Supreme Court ruled that criminal defendants have a constitutional right to counsel even if they cannot afford it. But too many states have not lived up to their constitutional obligation of ensuring that indigent defendants have counsel, helping lead to mass incarceration.

A new report from the Brennan Center For Justice explains that the states’ woefully ineffective handling of indigent defense cases has led to mass incarceration that is far more costly than providing adequate counsel to poor defendants. The report also provides suggestions for reforming the system.

In Gideon at 50: Three Reforms to Revive the Right to Counsel it is noted that at the time the high court down Gideon v. Wainwright in 1963 there were about 217,000 people in prison. “Today, the incarcerated population has expanded to approximately 2.3 million people. The United States has only 5 percent of the world’s population, but 25 percent of its prison population. One in four American adults now has been convicted of a crime. We live in an era of mass incarceration,” the report states.

If Gideon’s promise were being met, then it is likely the country could more easily overcome the crisis of mass imprisonment.

“Our poorly funded public defense system exacerbates our nation’s mass incarceration problem,” the Brennan report continues. “Rarely does the accused have adequate legal representation. Rarely is their fight balanced. Rarely do public defenders have the resources they need to keep Gideon’s promise of providing a constitutional right to effective counsel.”

The report makes a strong case that it would be a far more effective use of public dollars to help ensure indigent defendants have competent, adequate counsel instead of continuing to support a mass incarceration system that is incredibly costly and harmful to minority communities.

First, the report notes that mass imprisonment largely targets minority communities. “African-American and Hispanics, who make up less than 30 percent of the country’s population, are nearly 60 percent of the prison population. Whites, with 64 percent of the general population, make up approximately 35 percent of the prison population.”

And the cost of shoving more and more people into prisons is increasingly outrageous. The Brennan Center says taxpayers “spend more than $79 billion annually on corrections, with an average of $31, 286 per year to house each inmate in state prison.”

The report continues, that the “lack of a robust defense for most people in prison simply adds to these costs of the larger broken system. It also increases the risk that innocent people will be convicted and diverts resources from public safety priorities. It diminishes public confidence in our court system and constitutional protections and undermines our standing as nation committed to human rights.”

(During a an April 6 symposium hosted by the Harvard Law & Policy Review and ACS, UNC Law School Professor Gene Nichol also noted the enormous gap between the country’s lofty pronunciations on equality under the law and its tawdry treatment of poor criminal and civil defendants.)

The nation’s criminal justice system has also gone awry because of inadequate funding of public defenders and increasing caseloads due to “endless number of clients charged with low-level and petty offenses that public defenders are responsible for representing.”

The Brennan report notes that the obsession with imprisoning people over non-violent, minor offenses is born out of “tough on crime” policies. I’m sure that description refers also to the nation’s failed and terribly costly War on Drugs. Indeed the Brennan Center notes that currently “nearly half the people in state prisons are incarcerated for nonviolent crimes. Almost half the people in federal prisons are there for drug crimes. Only 7.6 percent of federal cocaine prosecutions and 1.8 percent of federal crack cocaine prosecutions are for high level trafficking. This focus on nonviolent, low-level offenses clogs the criminal justice system, offers minimal public safety benefits, and distracts from justice resources – including public defenders’ time – from public safety priorities, such as serious or violent crimes.”

The Center’s report offers three recommendations for helping alter this course: government should study what “crimes can be reclassified” as ones not calling for incarceration; new state and federal funding of the public defense system; and training for public defenders and social workers.

The report concludes, in part, that until “the right to counsel is a reality, underfunded public defense services will continue to contribute to the national crisis of mass incarceration.”