February 21, 2013

Indigent Defense System Problems Run Deep, ACS Issue Brief Says

Indigent Defense System Problems Run Deep, ACS Issue Brief Says

Feb. 21, 2013

Amanda Simon

Washington, D.C.  – In the lead up to the 50th anniversary of Gideon v. Wainwright, the American Constitution Society redistributed an updated issue brief today on indigent defense. In Gideon the Supreme Court ruled states have a constitutional obligation to provide indigent criminal defendants with counsel. The Issue Brief, first released in September of 2010, is authored by Erica Hashimoto, Associate Professor of Law at the University of Georgia School of Law. 

“Assessing the Indigent Defense System” was first released as part of a series on federal responses to the indigent defense crisis and remains extremely relevant today. While the Bureau of Justice Statistics (BJS) has released new data from its census of public defender offices since 2010, Hashimoto’s recommendation that “BJS collect and analyze additional data that can be used to assess and improve the indigent defense system” remains applicable.    

According to Hashimoto, without this data, we will continue to go without answers to fundamental questions, like are states “appointing counsel for indigent defendants as required by the Constitution[?]” An even more difficult question to answer without data, Hashimoto asserts, is do “appointed counsel meet a constitutional minimum standard of competence[?]”

Two focal points, for which BJS data collection would prove worthwhile and provide answers to these questions, are misdemeanor defendants and rural felony defendants. “These data will provide valuable information not only about the indigent defense system, but also about criminal justice systems across the states,” Hashimoto writes. 

Hashimoto concludes, “The indigent defense system has been at a crisis point for years.  Despite that fact, we still lack even the most basic data on the operation of the system, including, most critically, whether states appoint counsel to defendants who have a right to counsel.  We cannot continue to ignore this enormous gap in the data, and the sooner we recognize that fact, the more quickly we can begin to collect the data. … None of these steps will fix the indigent defense system overnight; the problems run too deeply for easy fixes.  But until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them.”

Hashimoto’s Issue Brief is a part of a larger project by ACS titled: “Toward a More Perfect Union: a Progressive Blueprint for the Second Term.” “Toward a More Perfect Union” is a series of ACS Issue Briefs offering progressive ideas and proposals, which the Obama administration, in its second term should consider in advancing. The series covers a wide range of policy areas, including immigration reform, protection of voting rights, climate change, criminal justice reform, judicial nominations, and education.   

To speak with the author, contact Amanda Simon at asimon@acslaw.org or (202) 393-6187.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.