The intervention by the Department of Justice in the quality of indigent defense services — very much a first from this administration — is getting deserved praise. NPR had a story:
. . . an unprecedented recent court filing from the Justice Department has cheered the typically overburdened attorneys who represent the poor and could have dramatic implications for the representation of indigent defendants. . . .
Plaintiffs [represented by the ACLU] in the case say around the time they sued, the cities had just two part-time lawyers running 2,000 misdemeanor cases. The Justice Department didn’t take a position on whether public defenders in those cities — Burlington and Mount Vernon, Wash. — systematically deprived people of their Sixth Amendment right to legal counsel.
But if a judge finds those cities should be on the hook, Justice lawyers urged that an independent monitor be appointed for public defender workloads, the first time ever in a federal case like this one. The overwhelming majority of cases about the quality of indigent defense move through state courts, which makes it much more rare for the U.S. Justice Department to intervene.
The New York Times, focusing on New Orleans, is blunt in an editorial today:
The disadvantage [faced by the defense] may be nowhere more glaring than in New Orleans, where indigent people sit in jail uncharged, sometimes for months, waiting for a lawyer whose workload far exceeds any reasonable standard. Professional guidelines recommend that public defenders handle no more than 400 misdemeanor cases in a year, yet a 2009 report found that part-time public defenders in Orleans Parish handled the equivalent of 19,000 misdemeanor cases per attorney annually — which means an average of about seven minutes spent by a lawyer on each case.
This terrible system is hobbled by a perverse funding mechanism. Traffic fines and court fees paid by defendants who are convicted or plead guilty account for nearly half of the annual budget of the Orleans Public Defenders Office. This is an unpredictable revenue stream, and it may also pose a conflict of interest since public defenders end up representing many defendants whose fines support their salaries.
Not only is it great to see DOJ involved in this issue, it is interesting to see creativity about the form that its involvement might take. The combination of non-governmental plaintiffs making the underlying case in state courts, and DOJ urging long term monitoring, has the potential to avoid the anti-DC backlash, while mobilizing local bar and judiciary in support, with the feds in the background.
It makes one wonder if a similar formula might eventually be used in Turner type cases, although the need for a monitor can probably more strongly be argued in situations in which the law is well recognized.