Gideon v. Wainwright in the Age of a Public Defense Crisis

Until recently, Vermilion Parish, Louisiana—a Cajun enclave on the Gulf of Mexico—had ten public defenders to represent poor people facing criminal charges. Now, after a round of layoffs, Natasha George is the only one. As the New York Times recently reported, George has little choice but to place most of her would-be clients on a wait list. Instead of the speedy and fair proceedings guaranteed by the Constitution, they have no way of knowing when their cases will be resolved. In New Orleans, which also suffers from a shortage of public defenders, a judge recently ordered the release of several defendants who have spent a year in jail awaiting the appointment of counsel. And in Baton Rouge, public defenders have threatened to begin refusing new cases this summer, if predicted budget shortfalls materialize. Throughout Louisiana, public defenders are operating in a state of crisis.

In some ways, the state’s indigent defense emergency is unique and extreme. Louisiana has never had a robust public defender system—in fact, it is the only state that attempts to fund this core government function largely through traffic tickets. And, as the state struggles to recover from Bobby Jindal’s disastrous tenure as governor, this already rickety framework is now collapsing. But difficult conditions for public defenders are neither new nor limited to Louisiana. Throughout the United States, public defenders have used the word “crisis” for decades as shorthand for the combination of volatile funding, understaffing, and excessive per-lawyer caseloads that has persistently plagued many defender offices.

In my recent article in the Columbia Law Review, “What Gideon Did,” I examined the grassroots effects of Gideon v. Wainwright, the landmark 1963 Supreme Court decision that established a constitutional right to state-provided counsel in criminal cases. For a number of structural reasons, state-level funding for Gideon’s implementation has proven unpredictable in the best of times, and susceptible to collapse in the worst of times, as defendants in Louisiana can attest. Given this history, Congress should step in to secure the Gideon guarantee with federal funding, so that defenders like Natasha George—and the poor people they serve—are not so vulnerable to the politics of state budgets.

A Chronic Crisis

Almost as soon as Gideon was decided, lawyers began to describe their working conditions as a “crisis.” While a few states, like California, had longstanding public defender offices established decades before Gideon, lawyers in most states set out to establish and expand defender offices. However, the available funding never kept pace with the growing demand. These funding realities contrasted with defenders’ interpretation that Gideon required them to serve as many clients as possible—a noble aim, but one that quickly produced dissatisfaction in lawyers and clients alike, as defenders’ caseloads spiraled upwards. I found, for instance, that in Massachusetts, the state public defender agency went from handling about 18,000 cases a year in 1968 to about 42,000 cases a year in 1972—a figure that would only continue to climb thereafter.

And, although state budgets for indigent defense rose in the 1970s, the number of cases that public defenders were asked to handle rose faster. As legal scholar William Stuntz observed, “Notwithstanding nominal budget increases, spending on indigent defendants in constant dollars per case appears to have declined significantly between the late 1970s and the early 1990s.” In 1983, the American Bar Association (ABA) lamented a nationwide “crisis in indigent defense funding.” In 1994, the ABA published a follow-up report whose title remains apt today: The Indigent Defense Crisis Is Chronic.

But in practice, constitutional rights are often hamstrung by state-level budgets.

The persistence of crisis conditions in indigent defense suggests that the causes are deeply entrenched, and not a temporary reflection of shifting political views or economic vicissitudes. One long-term historical factor helping to explain America’s weak commitment to indigent defense is the legal profession’s own prestige hierarchy, which has long valorized advising corporations more than helping ordinary people. A second factor undermining indigent defense is simply the structure of American federalism. The New Orleans judge who recently ordered the release of defendants awaiting counsel wrote, by way of explanation, that “constitutional rights are not contingent on budget demands.” But in practice, constitutional rights are often hamstrung by state-level budgets.

Attitudes within the Legal Profession

For much of the twentieth century, elite lawyers in many parts of the United States did not consider defending poor people to constitute a respectable professional niche—it was neither lucrative nor, in elite jurists’ view, particularly intellectually challenging. Rather, indigent defense was often described as a suitable training exercise for young lawyers—a way to gain courtroom experience and maybe do some good for the community before they moved on to their “real” careers. In order to quantify this phenomenon, I looked through Harvard Law School alumni directories for the class of 1958. Among those who had volunteered as law students with Boston’s local public defender equivalent, none were working as public defenders ten years later, and only one was working in government service. There were geographic exceptions to this pattern, but in the many regions that had no strong tradition of career public defenders when Gideon was decided, Gideon’s implementation had to start from scratch.

Fortunately, lawyers’ own attitudes about indigent defense have changed in recent decades. Over time, lawyers have reimagined indigent defense as a respected practice specialty—not just training for a future career, but a career in its own right. Jane Kelly, the Iowa federal judge whom Obama recently floated as a possible Supreme Court nominee, embodies this shift. Kelly spent many years working as a public defender in the federal system. After her name appeared on Obama’s rumored short-list, conservative media outlets subjected Kelly to despicable personal attacks, maligning her for representing “infamous criminals.” Nevertheless, Kelly’s very presence on court-watchers’ radar suggests that most of the American legal community now considers public defense a respectable background for a judicial nominee. To be sure, indigent defense is not the typical legal vocation, but law schools do provide support for students interested in this work, and hiring for some defender offices is extremely competitive. In particular, the organization Gideon’s Promise has an excellent record of partnering with law schools to place graduates in public defender offices in the Deep South, where the need is especially acute.

Federalism and Funding

All Americans should be able to depend on federal support for what is, after all, a federal constitutional guarantee.

Funding, however, remains a constant headache for defender offices around the country, which symptomizes a larger issue—the mismatch between the requirements of American constitutional law and the federalist structure of American government. It is easy, and often quite justifiable, to blame state legislators for stingy appropriations for public defenders. But state legislators work within a system that permits them to get away with underfunding indigent defense. The Supreme Court has never specified how exactly Gideon is supposed to be implemented. And although states can be punished after the fact if they fail to provide individual defendants with effective counsel, in the form of reversed convictions or habeas relief (although in practice even those remedies are hard to win), the Court has never translated Gideon into forward-looking standards for how states are supposed to structure and fund their indigent defense systems.

It is not surprising that the Court has failed to set clearer standards. The right to counsel is unique in American law—it’s one of the few federal rights to positive government assistance, as opposed to a negative right against government interference—and there is no clear blueprint for how such a right is supposed to be judicially enforced. Moreover, the justices are typically reluctant to micromanage state criminal justice systems. Nevertheless, the result is that public defenders have been left in the wake of Gideon to cobble together funding from an ever-fluctuating mix of sources.

Possible Solutions?

In New Orleans, the ACLU has filed a civil rights lawsuit challenging the public defender shortage as a systematic violation of defendants’ rights to counsel, due process, and equal protection. This litigation builds on efforts nationwide, since the 1980s, to use class-action litigation to spur indigent defense reform. For example, two years ago, Governor Andrew Cuomo reached a settlement agreement with plaintiffs challenging New York’s indigent defense system. On the whole, however, such lawsuits have met with mixed success.

As a more promising nationwide solution, Congress could establish a dedicated source of federal funding for local and state public defender offices. In 1979, Senator Ted Kennedy introduced legislation, based on an ABA proposal, to establish a permanent Center for Defense Services to administer federal grants and enforce minimum quality standards for indigent defense. At the time, the bill made no progress, but given the current political momentum for criminal justice reform, Congress should revive the idea. John Pfaff, a law professor at Fordham University who studies criminal justice from an economic perspective, recently estimated that a congressional appropriation of just $4 billion—a minuscule sliver of federal discretionary spending—would have the effect of instantly tripling indigent defense resources nationwide.

An infusion of federal funds into local defender offices could have ripple effects beyond alleviating emergencies in states like Louisiana. Every issue on criminal justice activists’ agenda—from excessive bail to draconian sentencing—is one where public defenders could make headway through their advocacy in individual cases, if they had the necessary resources. But more fundamentally, the rights of poor people, wherever they happen to live, should not be abandoned to the whims of state legislators. All Americans should be able to depend on federal support for what is, after all, a federal constitutional guarantee.



Want a Great Gift for Moms? Try Giving Them Better Hours.

Forget flowers. Forget fancy brunches. As a mom, nothing is as meaningful as my son’s smile when I get home from a long day of work.


When my husband was away in Afghanistan for a year, I experienced what being a single mom was really like. Working, taking care of a household, and spending quality time with my toddler tested my patience at times. Now that he’s home, I still work hard to provide for my family and, although I can’t spend as much time with them as I want, I’m lucky to work a job with a paycheck and hours I can count on week to week. Unfortunately, that’s not the case for everyone—too many mothers face a daily struggle of balancing caring for their kids and ever-changing work hours. 


According to a national study from the Center for Popular Democracy, moms either work too much or not enough. In both cases, most moms struggle in low-wage hourly jobs riddled with irregular work hours and unpredictable schedules. These moms are the women who serve your food at local restaurants, who are cashiers at the grocery store down the street, or are health care workers at a nursing facility. In fact, 61 percent of all women in the workforce nationwide hold hourly jobs. These jobs are often in low-wage yet fast-growing sectors such as health care, retail, and food service, and usually pay below $15.


What are the problems for moms working low-wage hourly jobs? As if facing inadequate and unaffordable childcare weren’t enough, these women also lack basic legal protections that would ensure they received adequate notice of their work schedules and the right to decline last-minute changes that throw carefully balanced routines into chaos. Unpredictable work hours are particularly challenging for the many moms who need to coordinate multiple part-time positions.


Too many mothers face a daily struggle of balancing caring for their kids and ever-changing work hours.

Fortunately, more and more working moms are coming forward to demand policy solutions that can make their lives less hectic. In Maryland, legislation introduced this year would require employers to post schedules three weeks out so parents could plan child care and other obligations. Under the proposal, workers would also be compensated for last-minute changes that could disrupt family events.


The proposal would also address a critical and underreported problem: the fact that many work part-time not by choice, but because they are forced into it. In fact, 1 out of 4 part-time workers would prefer to work full-time. Workers are often available to work but aren’t scheduled for more hours, often because even more part-time workers are brought on. Working fewer hours every week, in turn, often equates to a lower hourly wage and fewer opportunities compared to what a full-time counterpart receives. To address the dilemma, the legislation would give part-time workers access to full-time positions opening up at their jobs before a company could bring on more employees.


Although we sacrifice and work hard as mothers, many of us struggle. But even so, I wouldn’t trade being a mom for anything in the world—but a little help would be welcomed.

This Mother’s Day, a real gift would be a living wage with work hours we could count on. It’s time elected officials thought of moms across the state and enacted legislation that actually helps us in our day-to-day lives.


Now, that would be a gift worth giving.



Love Your Tax Refund? Here’s a Bipartisan Proposal to Make It Even Better.

With Tax Day come and gone, confusion over 1040s, 1099s, and W-2s has given way to enthusiasm for tax refunds. “Better than Christmas” is how one low-wage worker described her refund, and she’s hardly alone. Dozens of workers have compared tax season to Christmas, winning the lottery, and even an act of divine intervention.

That’s because for millions of Americans, tax time is a big boon—their refund is the single largest check they’ll receive all year.  In fact, for lower-income tax filers, their annual refund can amount to 30 percent or more of their income for the entire year, providing a rare period of financial security in a year full of financial distress. These filers spend their refunds mostly on paying down debts, investing in their kids and their own future, and putting some savings away.  For the rest of the year, though, a near majority of Americans are financially insecure, lacking even the most basic savings to deal with an emergency like reduced work hours or car trouble.

And that’s the problem with tax season: it’s just one short season. But life goes on and financial security shouldn’t end when that refund check is gone. A new bipartisan bill, the Refund to Rainy Day Savings Act, introduced by Senator Cory Booker (D-NJ) and Senator Jerry Moran (R-KS), aims to stretch out the positive impact of tax season by boosting emergency savings and year-round financial security.

The legislation tackles that goal in two simple ways. First, it allows all tax filers to opt in to a new Rainy Day Savings program at tax time. Under this program, when tax filers check a box on their 1040, a full 20 percent of their refund is saved for six months, accruing interest over the course of that period. Six months later, that deferred refund is put into their direct-deposit account. (Any account that is direct-deposit eligible can be used, including prepaid cards.) Filers would still get a sizeable refund at tax time, but they also get to set some aside for the year ahead and earn interest on it.

The second big component of the bill is designed specifically for low-income households. The Refund to Rainy Day Savings Act creates a new research and evaluation pilot program run by the Department of Health and Human Services to test out different models of savings matches for tax time. Driven by the needs of local anti-poverty practitioners and the populations they serve, this program will invest in innovative strategies to help lower-income households build savings and become financially secure. For example, as we’ve written previously, a pilot site could set up a 50 percent match for opting into the program. If the family saves $500 of their tax refund, they’ll receive $750 plus interest in six months. For reference, $750 is larger than the typical high-interest payday loan.

levin tax refundThe legislation also provides research funding to evaluate what works and what doesn’t in the field of matched savings for low-income families and individuals, paving the way for future reforms that could scale up countrywide. This is what real evidence-based policymaking looks like.

Of course, the Rainy Day Savings program won’t eliminate financial insecurity. Families need adequate income to get by day-to-day, not just savings to weather emergencies. Low-wage workers who can’t claim children on their tax return in particular will continue to lose out under the current tax code unless Congress acts to stop taxing them into poverty. And a deferred refund won’t work for everyone. Some households will need immediate access to their tax refund. It makes sense—it’s their money and they should have access to it when they want and need it.

But the Refund to Rainy Day Savings Act takes a critical step in the right direction. It’s the first bipartisan bill of its kind aimed at expanding emergency savings and financial security. It creates a new tool that could help millions of low-wage workers take better control of their financial lives. And it will do that while simultaneously laying the groundwork for future large-scale reforms.

The good news is that it won’t take an act of divine intervention to boost financial security for millions of lower-income Americans—just an act of Congress. When two senators from two different parties can come together to announce something like this legislation, the rest of Congress should take notice and make it happen.



Why Support for Fighting Poverty is Already Higher Than You Think

Public support for fighting poverty is growing.

A muchpublicized poll from Harvard’s Institute of Politics last week finds that millennials increasingly favor government action to reduce poverty and expand opportunity. In fact, 47 percent of those between the ages of 18-29 agree that “basic necessities, such as food and shelter, are a right that government should provide to those unable to afford them.” That’s up from 43 percent last year and 42 percent in 2014.  A similar number of millennials—45 percent—believe the government should spend more to reduce poverty.  That’s a dramatic increase from the 40 percent who shared this view in 2015, and the 35 percent who did in 2013.

But what the media missed in covering this poll is that these numbers actually understate the broad, bipartisan support for key safety net programs that help low- and moderate-income Americans.

A Vox/Morning Consult poll last month found that 60 percent of people ages 18-29 would be willing to pay additional taxes to fund “welfare benefits, such as help for women with infants or children, or nutrition programs”—significantly higher support than the Harvard findings.  A majority—51 percent—would also pay more taxes to provide additional income assistance for those living below the poverty line.


Moreover, support for antipoverty programs is not limited to younger voters.  53 percent of Gen Xers—those between the ages of 45 and 54—support more benefit funding for women, infants or children.  And when it comes to Social Security, a majority of voters in every age group would be willing to pay additional taxes to fund the program—including 56 percent of millennials. In fact, a Pew poll this year found that 54 percent of respondents from all age groups think aiding those in poverty should be a “top priority” for Congress and the President this year.

The lesson from this data is clear: the American public overwhelmingly supports investments that expand opportunity for low- and moderate-income people, and they are even more sympathetic when asked about specific programs.  This sentiment shouldn’t come as a surprise.  From Medicaid to Pell Grants, Americans have long supported public efforts to reduce health care costs, improve education, and expand opportunity.

Now they just need their leaders to listen.



Why Student Loan Debt Harms Low-Income Students the Most

Four years ago, student loan debt in America topped $1 trillion. Today, that number has swelled even further, with some 43 million Americans feeling the enduring gravity of $1.3 trillion in student loan debt.

While student debt may not intuitively register as something that plagues the poor, student debt delinquency and defaults are concentrated in low-income areas, even though lower-income borrowers also tend to have much smaller debts. Defaults and delinquencies among low-income Americans escalated following the Great Recession of 2008, a period when many states disinvested from public colleges and universities. The result was higher costs of college, which has led to larger loans.

Low-income students are often left at a dramatic academic disadvantage in the first place. For example, students who work full-time on top of college classes can’t cover the cost of tuition or living expenses, and working while in school can actually shrink the chance of graduating altogether. Moreover, these students are less likely to have access to career counseling or outside financial resources to help them pay for school, making the payoff negligible at best.

The inequity is so crushing that an alarming number of these students—predominantly students of color—are dropping out of school altogether. One-third of low-income student borrowers at public four-year schools drop out, a rate 10 percent higher than the rest of student borrowers overall.

When it comes to for-profit colleges, the story gets even worse. These institutions often target prospective students who are low-income while falsely assuring positive job and economic prospects upon graduating. Many students do end up dropping out, and even those who do graduate do not always receive a quality education that leaves them prepared for success—or with an income that matches up with their monthly loan payments. Their degrees too often cannot compete in the job market, leaving many of these students jobless.

A dream of a higher education shouldn’t be a sentence to years—or an entire lifetime—of poverty.

This confluence of factors explains why borrowers who owe the least tend to be lower-income, and are the most likely to fall behind or default on their monthly payments. As the Mapping Student Debt project has found, people with more debt are less likely to default on their loan payments because they have the most access to wealth, whether through family money or financial assets or educational degrees. And it’s not hard to connect the dots. The biggest borrowers tend to be the biggest earners, so those who take out large loans to pay for graduate or professional school are less likely to default or fall behind because they’re in high-earning jobs. The Department of Education estimated that 7 percent of graduate borrowers default, versus 22 percent of those who only borrow for undergraduate studies. Default can actually lead to an increase in student loan debt because of late fees and interest, as well as a major decline in credit, ineligibility for additional student aid, and even wage garnishment at the request of the federal government.

Fortunately, there are solutions already in place that can help borrowers get out of default and back on their feet.  For borrowers with federal loans, the Department of Education has a number of income-driven repayment programs (IDR) that cap a borrower’s monthly payment to as low as 10 percent of their discretionary income. Rather than being saddled with debt and an income that doesn’t realistically allow for repayment, borrowers can take advantage of programs such as PAYE, REPAYE, and Income-Based-Repayment to make their monthly loan payments proportional to their income. And some low-income borrowers might even qualify to pay nothing at all if they fall beneath certain income levels.

These plans won’t just help borrowers with high debt balances.  IDR is especially helpful for borrowers with smaller balances because it reduces the monthly burden while keeping more money in pockets to cover expenses for food, housing, and other basic needs that borrowers must choose between in the face of overwhelming monthly payments.

Yet woefully few borrowers are aware of these plans that have the potential to make sure low-income borrowers aren’t paying more than they can afford. Fully 51 percent of student loan borrowers nationwide are eligible for these programs but only 15 percent are enrolled.

A dream of a higher education shouldn’t be a sentence to years—or an entire lifetime—of poverty. With federal IDR programs, the process of paying back any amount of student debt can be much less draining of an obligation, especially for our most vulnerable citizens. It’s on all of us to make sure those who can benefit the most from IDR are aware of it.