Justice in Jeopardy?

E-newsletter Issue #50 | July 8, 2010

An $11 million shortfall in North Carolina’s Office of Indigent Defense budget could mean the office will run out of money to pay appointed public defense attorneys as early as mid-May 2011. In Montana, public defender caseloads have grown by 4 to 7 percent over the past two years, but the system still has to deal with an $800,000 deficit this budget cycle.

In the face of an economic recession and budget constraints, states are finding it more difficult to provide a constitutionally mandated public defense attorney for indigent criminal defendants.

Public defenders handle about 32 percent of indigent cases in North Carolina, and the Office of Indigent Defense Services contracts with private attorneys to handle the rest. But the $11 million 2011 fiscal year shortfall puts that legal service in jeopardy. Assistant Director Danielle Carmen said the shortfall will force the office to stop or delay paying appointed private attorneys by mid-May 2011. That could be bad news for indigent defendants, according to Carmen.

“You get what you pay for in this world—there is a corresponding impact on quality when you don’t pay people a fair wage,” she said.

Budget decisions regarding public defense programs can have an echo effect beyond the usual stresses state programs experience when funding is cut. Underfunding such programs could result in legal battles over the constitutionality of decreased funding streams or worse, undermine the efficient and necessary functions of the criminal justice system.  

“Indigent defense is not an optional expense for state governments,” said Mary Schmid, senior counsel for the Criminal Justice Program at The Constitution Project. “While other state budget expenditures may be completely discretionary, funding for indigent defense is simply not.” 

In 1963, the U.S. Supreme Court decided Gideon v. Wainwright, which established the constitutional right to a public defense at the federal and state level and led to a state responsibility to provide that defense.

States that fail to adequately fund or administer their public defense systems may open themselves up to legal liability. More than two dozen states have faced legal challenges to their programs in recent years.

“When state legislatures refuse to provide adequate funding to indigent defense systems, as they are constitutionally obligated to do, states face the real possibility of litigation against the state, as we’re seeing now in states like Michigan, New York and Florida,” said Schmid.

States can fill the growing gap in funding for their indigent defense funding with The Byrne Justice Assistance Grant—or JAG—program.  JAG is the largest federal grant program for criminal justice. States have quite a bit of flexibility in how they utilize the funds they receive through the program.

Traditionally, states have not used that flexibility to benefit their public defender programs. But with a growing funding gap—and potential lawsuits—state and local communities may want to consider using a larger percentage of these grants to help shelter public defender programs from funding shortfalls.

“States should take advantage of this funding stream to assist them in meeting their obligations,” said Schmid. The Department of Justice has identified indigent defense as a “key priority area” for which states should use a portion of the JAG money.

A recent survey by the National Criminal Justice Association identified several states that are using JAG grant money innovatively to fund indigent defense programs. In Minnesota, the state used JAG funds to offset decreases in state funding that would have cut 53 public defender positions. Delaware is using grant money to fund vacancies in the public defender’s office for case processing needs and in Kentucky, JAG funds are being used to pay for social workers who will work with clients to identify needed services and sentencing options using evidence-based practices.

CSG resources:

Other resources: