On a typical day I will field four or five calls from folks trying to get advice that I know have every intention of using a public defender. I feel for these people. Many times they are calling me because they have not spoken to their assigned public defender yet. I’ve never been a public defender, but I know that the work involves very long hours, often thankless clients, mediocre pay, and – for lack of a better word – disrespect. Please allow me to explain:
For all their hard work, public defenders get a ton of grief. People ask, how can you represent so and so? I would ask, how can you not? Until 1962 the United States of America was not required to provide an attorney for folks who were unable to pay for one. At this time, it was still legal to charge discriminatory poll taxes to would be voters. The right to counsel is a victory of the Civil Rights movement, just like the abolition of poll taxes was. I would argue that discrimination against a person based on what they are charged with is hardly different that discrimination based on one’s race. It still is innocent until proven guilty, right? Furthermore, people of all ethnicities and groups utilize protections established during the Civil Rights era – just go to any courtroom to see the right to counsel in action.
Before I talk about whether you should go with a public defender or not, let’s look at some numbers. A recent Arkansas Times article demonstrates just how severe the crisis in our State is. I selected a few data points for demonstration:
- Arkansas funds 160 full-time Public Defender positions for the whole State. 106 of these are full-time, while 108 work part time. Half of 108 is 54, and that plus 106 equals 160. From my experience, I can say that many of the public defenders working “part-time” are actually working closer to full time (but at half pay).
- These 214 folks, with half working “part-time,” covered 86,173 cases from July 1, 2013 to June 30, 2014.
- If all the Public Defenders were full time, that would be an average of 402 cases per year per attorney. Since many are part-time that number is even higher.
- The American Bar Association recommends that no attorney should work more than 200 defense cases per year, and that is if they are misdemeanors – felonies are 150.
- Even 200 cases is a lot. I simply could not do what I do on cases if I had 200 of them a year.
- That means your public defender is most likely working twice as many, if not more, cases than recommended – and the recommended is already high. Some areas even reach five times too many cases per attorney. That means some public defenders handle the absurd amount of about 1000 cases a year.
- These numbers are from this Arkansas Times Article
So the numbers are clear, public defenders are overworked. Should you hire private counsel, though? The answer is a definitive maybe. Let’s consider a few things. Courts have to determine you qualify for a public defender from a $ standpoint. It varies from court to court, but often owning a house disqualifies you from using a public defender. The court can also assess fees for using one. The highest I’ve seen is $750. Public defenders would not do the work if they were not passionate about it. I do not think there are many exceptions to this. You want someone passionate on your side. Public defenders are also in court pretty much everyday. The typical attorney is not. Public defenders often have a strong relationship with the judge – it can be a good or bad one, though.
On the flip side, private counsel probably has more time to spend on your case. Whether they actually do spend more time or not depends on who you hire. Many attorneys do criminal defense as a small part of their operation. If you are hiring an attorney, speak to a few – most of us offer free consultations. Don’t go just based on price alone. Check if who you are talking to is a member of the Arkansas Association of Criminal Defense Lawyers. There are not that many attorneys in Arkansas that are truly dedicated to criminal defense. I’ve been around many a public defender that was much more effective than private counsel. That being said, public defenders are stretched thin.
I can’t say that you need to hire private counsel or a public defender, because some public defenders will get you a better result than some private counsel. The opposite is true as well. I can say that you need to seriously assess your options, and that is a personal thing. As an aside, I have seen plenty of people spend more on their bail bondsman than their attorney. This does not make sense, and is simply a bad plan. Your bail bond is for a few months, your attorney is for life. Also, a skilled attorney can likely reduce your bond anyways.
Remember: Many of my clients have been falsely charged and had to pay me to get exonerated. Even when they were found innocent, I consider this a punishment. After all, hiring an attorney is like paying a fine in a way. My overall message here is that we need to support public defenders, and that you need to make a careful decision when selecting your attorney. Don’t assume ANY private counsel is better than ANY public defender, but understand the limitations of each and speak to multiple folks.
Improving funding for public defenders benefits us as a society, but the real impact is felt by the individual receiving legal help. In the abstract, it is hard to sympathize with some one. When you look into someone’s eyes and see their pain, it ain’t so hard. When you picture a relative or close friend of yours needing assistance, it ain’t so hard. Our current funding levels likely create a Constitutional issue due to how overworked public defenders are. Should what we are doing as a State with regard to funding public defenders be legal? No, based on my experience, I do not think so. In my opinion, our current funding levels for public defenders are just as discriminatory as a poll tax. Our inadequate funding is embarrassing for Arkansans, and exposes taxpayers to a high risk of funding the State’s fight against a federal lawsuit. Doing the right thing is not only right, it is also cheaper.
Our prosecutor system has issues as well, but I limited this article to public defenders. If you want my thoughts on prosecutors, ask for an article. Also, if the Arkansas Times is mad I used their data, just call me.