Analysis

When Landlords Discriminate

This article contains a quote from an interview that may be offensive to readers.

With over a four-fold increase since the 1970s, the United States now boasts the highest rate of incarceration in the world. One in 100 adults are behind bars, and 650,000 return home each year. But where can they live? Although stable housing is key to successful social reentry and preventing recidivism, those with criminal records face enormous barriers in the housing market. They are limited not only by their economic circumstances—facing significant barriers to employment—but are often locked out of the housing they can afford. This makes the Department of Housing and Urban Development’s (HUD) new guidance—which limits the use of criminal history in tenant screening—incredibly timely, if not overdue.

Those with criminal records are not a protected class under the Fair Housing Act, which prohibits “discrimination on the basis of race, color, religion, sex, disability, familial status or national origin.” But because of the disproportionate numbers of African-Americans and Hispanics with criminal records—due in large part to law enforcement practices that have unfairly targeted them—minority renters will be unfairly burdened by blanket rental policies that exclude those who have spent time in prison, regardless of any intent to discriminate. HUD’s new guidance reminds landlords that categorically refusing to rent to people with criminal history may, then, be a violation due to “disparate impact.”

The power of this guidance depends on the actions of one important group of people: landlords. For the past three years, we have led a sociological study of 130 landlords in Baltimore, Dallas, and Cleveland, addressing the key question of how landlords decide whom to rent to.*  While most landlords who rent to poor families will overlook a misdemeanor, few said that they would accept individuals with felony convictions.

Discrimination is not always intentional, but it can have insidious effects on vulnerable populations.

Landlords in our study have a variety of official screening techniques at their disposal to sort through tenants: criminal background checks, calling previous landlords, credit checks, visiting a tenant’s current apartment, and verifying income. But many operate far outside this standard toolbox to find the tenants they want. Indeed, it is perfectly legal for landlords to use their discretion when it comes to many forms of tenant screening, but illegal discretion is common too, for example in the case of families with children. While these impressionistic techniques are sometimes used to circumvent fair housing law, they more often reflect the unconscious biases of landlords in ways that may jeopardize the successful implementation of HUD’s new guidance.

The guidance will likely be most effective for managers like Tracy (whose name has been changed to protect confidentiality), who oversees a large apartment complex in Dallas. Well-versed in fair housing law, professionals her like discuss their screening criteria in precise and rehearsed terms. There are small ways in which she can exercise discretion, mostly by marketing properties more enthusiastically to certain demographics, but the actual screening process is largely outside of Tracy’s control. Her complex simply purchases software from the Texas Apartment Association. She plugs in the information from each application and hits submit—the system determines eligibility.

This isn’t just a matter of efficiency. Corporate landlords intentionally take discretion out of the hands of managers like Tracy, reducing vulnerability to discrimination claims. So long as property managers rely on the software algorithms, owners are protected from litigation. But highly professionalized corporate managers like Tracy represent less than half of the low-end rental market. The rest are individual operators owning anywhere from one to a few dozen properties that they manage themselves, making up the rules as they go along.

Gus is one of these “mom and pop” landlords who uses quite a bit of discretion picking his tenants. Now in his early 60s, Gus spent his career at a money management firm where he amassed enough personal wealth to buy a house in Dallas’ tony Highland Park. But when the firm downsized and Gus was pushed from the high-energy world of stockbroking to a staid quasi-retirement, he decided to invest in low-end rental properties.

We spent two days with Gus, riding shotgun in his truck while he went about his business. Gus started off the screening process by text message, sending photos of the unit and a flood of screening questions to potential renters. The first applicant got only to question two. Though he stated his income was $3,500 per month as a contractor, he could not provide proof. Gus noted dismissively, “That guy eats what he kills,” and put the phone back in his pocket.

Later on, Gus met another prospective tenant at a McDonald’s. He ate in relative silence while the middle-aged, African-American woman filled out the paperwork. He collected a $40 application fee, and said he’d be in touch. Back in the truck, Gus confided that he would never actually conduct the background check the fee is intended to cover. Her willingness to be screened was enough. That, and a face-to-face meeting, was all he needed. He accepted her application the next day.

It’s not that Gus thinks screening isn’t important—he’s intimately familiar with the costs of placing the wrong tenant. But he believes that the characteristics of a good tenant aren’t written on their application or in their demographic profile. He seeks some unmeasurable quality—a combination of personal responsibility and stability. At first blush, his strategy appears in sync with HUD’s guidance to take context into account. But like many landlords, Gus’s biases are embedded within a highly racialized worldview.  To illustrate this, Gus noted that most of his tenants are black or Hispanic and he would never reject someone based on race, but in the next breath declared, “If they’re just some n***** I don’t want them.”

Gus’s story embodies two key challenges to the goal of preventing discrimination based on criminal history. First is that Gus’s screening process exists outside of both the legal and illegal practices anticipated by HUD. Taken as a whole, his techniques almost certainly result in disparate impact, but to accurately sort out what criteria he is using to make his decisions is largely impossible even when we witnessed it first hand. In addition, the enforcement regime for a landlord like Gus presents an enormous challenge. Gus, and millions of landlords like him, float under the radar of such evaluations. Individually, they are small-time players, but taken together, they represent an enormous portion of the market.

Criminal background checks serve as one of the key mechanisms by which landlords make distinctions—an easy and readily available proxy for responsibility and stability. But they are too often a convenient camouflage for discrimination. HUD’s new guidance hopes to provide tools to litigate non-compliant landlords and incentivize others to rethink their screening policies. However, the policy has blind spots. For example, does the requirement that landlords evaluate criminal records on a case-by-case basis solve the problem? Gus’s story suggests that it may not. Most of the discrimination that we saw occurs on a case-by-case basis, through the gut-feelings of small-time landlords.

Furthermore, the guidance does not apply to the blanket exclusion of renters with drug distribution convictions, who are not protected under the Fair Housing Act. There is a deep irony here. Though the War on Drugs is not solely responsible for mass incarceration, it has nevertheless sent hundreds of thousands of Americans to prison in recent years for nonviolent drug offenses, with a staggeringly disproportionate effect on African-Americans. Those locked up for drug-related crimes made up just over half of the federal prison population in 2014. In other words, a huge portion of those who have spent time behind bars will not be protected under this guidance. This caveat raises larger questions about how those with criminal records can and should be reincorporated into society. HUD encourages landlords to think about whether their practices keep the community “safe.” But if we want citizens from prison to reintegrate, isn’t making sure they find roofs over their heads part and parcel of this endeavor?

Landlords have enormous power when it comes to deciding who lives in their homes. And while discrimination is not always intentional, it can have insidious effects on vulnerable populations. This makes it ever more important to clarify the discretion that landlords have in implementing the new HUD guideline. This will better protect the formerly incarcerated, integrating those who are vulnerable into society by allowing them access to homes, rather than ostracizing them.

*This research received funding from the Department of Housing and Urban Development and the Furman Center for Real Estate and Urban Policy. Opinions expressed herein are solely those of the authors.

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Analysis

If You’re Low-Income, America Is Still an Oligarchy

The U.S. isn’t an oligarchy after all.

At least that’s the argument in a recent article by Vox’s Dylan Matthews. Matthews cites new research finding that the rich and middle class agree on about 90 percent of bills that come before the United States Congress. He adds:

That leaves only 185 bills on which the rich and the middle class disagree…

…on these 185 bills [in which the rich and middle class disagree], the rich got their preferred outcome 53 percent of the time and the middle class got what they wanted 47 percent of the time. The difference between the two is not statistically significant.

Of course, that leaves out another group of Americans entirely: the poor. Admittedly, individuals cycle in and out of poverty so the notion of who is poor isn’t static. But that doesn’t change the fact that the poor are not only the least-represented group in American society, they’re also the contingent arguably most affected by federal policy decisions. So how do bills supported by low-income Americans fare? Not so well. The passage rate for bills favored only by low-income groups is 18.6 percent—slightly lower than those that lack support from all of the income groups. In fact, as the study’s authors conclude, “These results suggest that the rich and middle are effective at blocking policies that the poor want.”

What’s more, policies favored by the middle class and poor, who together comprise a majority of Americans, passed just 20.4 percent of the time, while those favored by only the rich passed 38.5 percent of the time. In other words, the rich had more success getting their policies enacted than the middle class and poor combined—which is the very definition of an oligarchy.

slevin1Underscoring how little representation low-income Americans receive at the federal level, another recent report found that Members of Congress from states with higher poverty rates were also less likely to support measures that help their low-income constituents.

Each year, the Shriver Center ranks Members of Congress from every state based on how they vote on a series of anti-poverty measures, ranging from the Child Tax Credit to Medicaid. Given that these programs earn overwhelming support from low-income voters (and most income groups), the Shriver rankings also illustrate the responsiveness of elected leaders to the concerns of low-income people.

In most cases, the divisions fall along party lines. In California, for example, every Democrat received either an A or A+, while every Republican received either a D or F. But party identification wasn’t the only predictor of a Member’s voting record. States like Louisiana, Alabama, Kentucky, and Arkansas all have poverty rates above 19 percent—some of the highest in the nation. Yet each of these states has a state delegation grade of D or F. In Mississippi, the state with the highest poverty rate in the country (21.5 percent), Senators Thad Cochran and Roger Wicker both received F grades.

In contrast, Connecticut and Maryland—ranked 48th and 49th in poverty levels—received A grades for their state delegation. Massachusetts, the state with the best average voting record in the country, also has one of the lowest poverty rates.

slevin2

slevin3Of course, correlation isn’t causation. The fact that states with higher poverty levels also have records that fail to reflect the preferences of many low-income voters doesn’t mean a higher poverty rate leads to undemocratic voting records. More likely, the two share some root causes. Many of the states with the highest poverty rates are located in the Deep South, a region that has historically been hostile to worker organizing and political participation by low-income people in addition to its legacy of slavery and Jim Crow.

But the report sheds some critical light on the paradoxical relationship between families who live in poverty and the politicians charged with representing them. And it suggests that for the most vulnerable Americans, the U.S. is far from democratic.

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Feature

How Gentrification Exacerbates Hunger

Washington, D.C. is the most expensive place in the country to raise a family of four—a fact that disproportionately harms the ability of low-income residents and residents of color to thrive. Inequities extend from job security and high-quality education all the way down to families’ day-to-day ability to access healthy, affordable food. While wealthy residents of D.C.’s Ward 3 have their pick of 11 full-service grocery stores, families in Ward 8—also home to some of the highest poverty rates and obesity rates in the city—are faced with only three options. To make matters worse, higher-end stores such as Whole Foods and Trader Joe’s have cropped up all over the District’s gentrifying neighborhoods. Instead of bringing access to affordable and nutritious food, the increased demand spurred by the stores can result in long-time residents being priced out of their neighborhoods.

This displacement has resulted in significant demographic shifts across the D.C. area. Until recently, black families comprised a majority of the city’s residents—about 60 percent in 2000. But as of 2014, only 49 percent of Washingtonians are black. Black families who have been displaced from the city due to its high cost of living have been replaced by an influx of mostly white newcomers, along with a growing Latino population.

Gentrification in our cities isn’t new, nor are the debates that surround it. But what is less discussed is how gentrification weakens displaced families’ access to social services that are critical to achieving social mobility. In D.C., local organizations and advocates that work to bring food access to low-income families have watched the number of families they serve dwindle.

One such organization is Martha’s Table, a nonprofit that has been part of the fabric of D.C.’s 14th Street Corridor for over 35 years. Martha’s Table provides everything from early childhood education and after-school programming to youth employment and service learning opportunities. It is perhaps best known for its Healthy Eating Initiative, which coordinates mobile food trucks and farmers markets, reaching some 20,000 residents a year.

But its holistic efforts to ensure that services are meeting the needs of the surrounding community have been compromised by a troubling trend: long-time residents and Martha’s Table beneficiaries are being priced out of the neighborhood. New residential and commercial developments in the historically black neighborhood have attracted a flood of white, affluent newcomers. Due to the lack of affordable housing in D.C., low-income residents are pushed to the periphery of the city and surrounding suburbs, which has undermined the ability of city-based organizations like Martha’s Table to serve them. As Director of Stakeholder Engagement Ryan Palmer says: “35 years ago, this was the epicenter of all of the things that we are trying to address. Now people are taking two to three buses to get here.” In order to stay true to its mission of working in the communities it serves, Martha’s Table is reducing services in its current location and moving its headquarters east of the Anacostia River to Wards 7 and 8 by 2018.

Even when residents don’t leave the neighborhood, they now have to travel far and wide for basic necessities. Kim Williams is a mother of three children who have benefitted from Martha’s Table programming for four years. She has lived in the 14th Street neighborhood for over 35 years and has seen how its changes have shaped her family’s access to healthy, affordable food. “I can’t afford to grocery shop in the area, so I physically live in the neighborhood but I leave to shop for food. The stores in the neighborhood are for new people coming [here]—not for the families who have been here for generations.”

Kim Williams with her three children. (Tyrone Turner)
Kim Williams with her three children. (Tyrone Turner)

Williams went onto discuss the tradeoffs she is forced to make to ensure she has food for her family. “It’s more cost-effective for me to buy meals from McDonald’s than to spend money on healthy food. And if I do buy healthy food, something else suffers—I won’t be able to pay my bills or something else.”

In an effort to bring a comprehensive set of services into a single location, Martha’s Table is now engaging residents of Wards 7 and 8 in order to shape what will be provided at their new headquarters. But these efforts may be undermined by looming residential and retail development projects that would add 900,000 square feet of commercial properties and 500  residences to Martin Luther King Avenue, a mere 8 percent of which will be affordable housing units. The development is already projected to shift the demographics of these neighborhoods. As Martha’s Table’s Palmer told TalkPoverty, “I would be lying if I said I haven’t wondered what changes will happen in the neighborhood between now and the two years when we get there.”

Across the city, D.C. Central Kitchen (DCCK) has also experienced the effects of gentrification. Through its Healthy Corners effort, DCCK sells nearly 88,000 healthy food products in corner stores throughout low-income wards. But increased rents in those areas have undermined efforts to increase participation in the program.  As Chief Development Officer of DCCK Alexander Moore states, corner store owners are “worried about getting a return on their investment and that makes it much tougher to integrate those stores into our program.” And, due to the decreased supply of affordable housing that arises from gentrification, many store owners simply cannot afford to live in the community where their store is located—which makes them less invested in building the community relationships necessary for marketing the healthy produce and increasing food access for low-income residents. The end result? Low-income residents are unable to access fresh, affordable produce at the local corner stores, while affluent newcomers have access to multiple full-service grocery stores within walking distance of their homes.

The effects of gentrification have also spilled over into the organization’s employment programs. DCCK offers a 14-week Culinary Job Training Program to more than 100 residents in order to prepare them for careers in the food service industry. This initiative has a hiring rate of over 90 percent for graduates. But, due to displacement, there is a growing demand for job training from Maryland residents who once lived in the District. It’s not unheard of for DCCK to provide job training to a parent living in Maryland’s Prince George’s County, while their child resides at a family member’s apartment in the District so they have access to D.C. public schools.

A key way to meet the needs of long-time neighborhood residents—rather than simply shifting them elsewhere—is by investing in more equitable development strategies that ensure the engagement of these residents in the planning, implementation and evaluation of development projects. Currently, there is little opportunity for residents to actively participate in discussions about changes in their neighborhoods. In a recent interview for Empower D.C., Linda Brown, a public housing resident, stated, “The main thing is that residents aren’t presented with the facts and so they can’t make sound decisions or have any input if they’re not presented with the facts.” Brown said that residents are often asked for input only once development processes have begun to take place, at which point they wield very little power or influence.

One hope for ensuring that long-time residents are able to reap the benefits of food-access initiatives is D.C.’s inaugural Food Policy Council. The Council will work to promote food access, sustainability, and a local food economy in which residents, local schools, hospitals and other organizations buy locally-grown food. Advocates like DCCK’s Moore see this development as positive. He is hopeful the Council can provide a “forum for diverse insights for what we need to do with our food system” by “investing purposefully in equity and ensuring all community voices are at the table.”

Organizations like Martha’s Table and D.C. Central Kitchen have set a good example for addressing inequities that are compounded by gentrification, such as hunger and food insecurity.  The Food Policy Council has the potential to expand upon these efforts by making a more sustainable local food economy in the city. But unless we engage the very communities that these programs intend to support, these initiatives will serve a shrinking population—and not because low-income residents have achieved social mobility, but because they have been priced out.

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Analysis

Why Millennials Have the Greatest Stake in Social Security Expansion

Discussions about Social Security in politics and the media often focus on its role as a retirement program that provides vital protections to seniors. But the fact is that Social Security provides vital retirement, disability, and survivors’ insurance for all generations of Americans. In addition to significantly reducing senior poverty, Social Security is the nation’s largest children’s program and lifted 6.9 million Americans under age 65 out of poverty in 2014. And no generation has a greater stake in the fight to protect and expand Social Security benefits than today’s young workers, the millennial generation.

After coming of age in the wake of the Great Recession, millennials have inherited decades of wage stagnation and growing inequality. While median annual wages have grown just $1,422 in real dollars from 1986 to 2013, the average cost of attending a four-year college has more than doubled. Unless these trends reverse, many millennials will have to defer saving for retirement in order to pay off their educational debts, leaving them with fewer resources in retirement beyond Social Security. Indeed, millennials have accumulated less wealth than their parents’ generation had at the same age 25 years ago. These factors, combined with the disappearance of employer-sponsored traditional pension plans, mean that 3 in 5 younger households are at risk of being unable to maintain their standard of living in retirement.

The problem is particularly acute among millennials of color. Black and Latino households typically have lower incomes and significantly fewer assets than white, non-Hispanic households. And although Social Security benefits replace a larger percentage of lower earners’ incomes, their benefits are still smaller than those received by higher earners—leaving households of color less able to contend with the high healthcare costs experienced by seniors and people with disabilities.

The program was created in response to economic circumstances similar to those that have shaped the formative years of today’s young workers.

Social Security is also critical to millennials during their working years. Before reaching their full retirement age, an estimated 1 in 4 of today’s 20-year-olds will become disabled, and 1 in 8 will die. Such events can be devastating at any age, but they are especially harmful to young workers and their families, who will have had fewer years to pay off educational debts and accumulate wealth. Many of these young workers and their families—especially those with low incomes—are also unlikely to be covered by private insurance, particularly in the case of disability.

Fortunately, virtually all working Americans are covered by Social Security’s disability and survivors’ protections, and can expect to receive benefits for themselves and their families. These benefits are significant—a 30-year-old worker who earns $30,000 a year with a spouse and two children has earned the equivalent of roughly $1.1 million in disability and life insurance protections through Social Security. Although no one anticipates dying young or experiencing a permanent disability, Social Security’s modest but vital benefits are often the only way families can continue to afford basic necessities and avoid falling into poverty.

But instead of increasing benefits, opponents of Social Security suggest that spending on the old is stealing from the young, and that the nation must choose between supporting one generation or the other. They call for “generational equity”—the idea that unless we cut benefits soon, we will run out of resources to protect younger workers in retirement. But this is false. Even after 2034, when the program’s shortfall is projected to occur, Social Security will still be able to pay around 75 percent of promised benefits. And it’s worth noting that the same individuals who call for changes to protect the young also promise to protect current beneficiaries by forcing benefit reductions entirely on new beneficiaries—that is, by cutting the benefits of the same younger generations they claim to be protecting. These are unnecessary choices that other nations aren’t making—countries that spend more on seniors also spend more on children.

Social Security should be expanded now; not just for today’s seniors, but for millennials as well. The program was created in response to economic circumstances similar to those that have shaped the formative years of today’s young workers: the Great Depression. Social Security was a cornerstone of the New Deal, a range of policies which created jobs, invested in national infrastructure, regulated big banks, and protected workers’ rights. Similarly, expanding Social Security should be a cornerstone of an agenda for young workers, accompanying policies such as raising the minimum wage, closing the gender pay gap, and adopting paid family leave. Not only would these policies improve the economic security of today’s young workers; many of them would help to improve Social Security’s long-range solvency as well.

Most importantly, millennials recognize that Social Security is a symbol of intergenerational solidarity, in which workers make contributions to fund current benefits while earning vital insurance protections for themselves and their families. Nearly 7 in 10 millennials agree that “we should consider increasing Social Security benefits.” It’s time for policymakers to listen to them, and expand Social Security for all generations of Americans.

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Explainer

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.

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