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The Right to an Attorney: An American Myth

Image depicts a public defender with their client (Helena Independent Record)

Jose Santiago was arrested just one month after his 16th birthday after stealing an iPod and spent a year and a half in prison. He didn’t see his attorney until the day he was sentenced, even after requesting access to an attorney six separate times in Queens Criminal Court. After 12 to 15 police squad cars surrounded her public housing complex and swarmed her in her apartment, Shanta Sweatt took the blame for her former boyfriend’s bag of marijuana, spending thousands of dollars and incurring a criminal order in order to spare the culpability from befalling her children. Sweatt only saw her defender once before her day in court and was told to take a plea deal in order to avoid jail time even though her attorney didn’t believe she committed the crime. Stories like these are alarmingly common in the justice system. 

Billionaire Henry T. Nicholas III was arrested in 2019 for narcotics trafficking after having heroin, cocaine, methamphetamine, and ecstasy in his hotel suite. He was released without posting bail and avoided a maximum life sentence after the district attorney offered him (through his private counsel) an Alford plea that allowed him to legally maintain his innocence. It’s thought that an ordinary person in his situation would have likely been instead offered a plea deal of three to 21 years in prison

The US incarceration rate currently stands at 639 inmates per 100,000 people, around 13 percent higher than the rate of the next-closest country, El Salvador. The US also has the largest overall number of people behind bars, with more than 2 million jail and prison inmates. An overwhelming majority of those incarcerated are members of minority demographics, as the judicial system pushes these individuals towards more severe sentences with fewer chances for parole. 

While many of the problems in the US justice system can be traced to discrimination in policing and sentencing, the poor quality of public defense provided to those who need it contributes significantly to the high number of lower-income individuals behind bars. As a result of alarmingly inadequate funding, the US’s public defense system provides ineffective defense to those who need it most. This funding drought directly promotes an inequitable process of justice through which lower-income individuals are routinely denied proper counsel while wealthier clients, including corporations, can spend millions of dollars on any quantity of high-quality legal counsel.

Clients are guaranteed the right to a public defender under the Sixth Amendment to the Constitution. As noted by the ACLU, though, there is no guarantee that the defendant will eventually receive a lawyer capable of properly defending their client. If a client finds their defense unsuitable, their only remedy is to file an initial direct appeal for a new lawyer. Realistically, there is little chance a new lawyer will be better than their old one. A 2009 study by the National Association of Criminal Defense Lawyers found that public defenders in New Orleans have just seven minutes to prepare for a case and defend a client court. As a result, the defendant is significantly disadvantaged, regardless of the quality of their attorney, and often encouraged to pursue a plea deal for a reduced sentence. Public defense is so poor in quality that nearly 70 percent of death sentences are overturned during the appellate process, typically due to a finding that the defendant received ineffective representation at trial. 

Why does such a discrepancy exist? Public defense is simply an undesirable career, which leads to a major shortage of practitioners. As of 2010, lawyers at larger private firms can make an average of $135,000 in their first year in comparison to an entry-level public defender’s $47,500 and, according to a 2009 study, just 53 cents were spent on public defenders for every dollar spent on prosecutors. States have an incentive to encourage prosecution over defense, as they generate income through prisons, while attorneys are incentivized to work for larger, more lucrative private firms. The prestigious Yale Law School website even mentions that students might choose to pursue a career in private firms in order to avoid the volatility and low pay of public defense, mentioning that some students pursue a private law career for a few years to build up a profit before pursuing public defense. 

Over 80 percent of people charged with a felony are indigent, meaning they cannot afford a private attorney. Recognizing how the enormous pay disparity between both sides of the court leads to a lower quality of defense, it’s easy to see how lower-income clients are then immediately placed at a disadvantage. It should also be mentioned that African Americans are disproportionately more likely than white Americans to be lower-income, highlighting the increased likelihood of African Americans and people of color to be prosecuted and incarcerated. This isn’t a coincidence, though, as state governments are actually incentivized to encourage incarceration, as disbursement of federal funds for prisons has been conditioned on increasing prison populations and increasing sentences. They push the financial responsibility of public defense onto local governments, appoint public defenders sporadically throughout the judicial process, and even deny public defenders access to necessary information in the name of “privacy” in order to hide police misconduct.

As a result of their outrageously high workloads with limited time per case, many public defenders pursue plea bargains in an attempt to lessen the charges faced by their clients instead of attempting to prove innocence. Currently, 94 percent of felony convictions at the state level and 97 percent at the federal level are the results of plea bargains. All this means is that an incredibly large number of people, many of which are people of color, are being encouraged to admit guilt to hopefully receive lesser sentences for crimes like marijuana possession or low-level theft because their attorneys have no time to properly defend them. Consequently, having criminal records decreases these individuals’ abilities to later secure housing or employment. 

Addressing the horrific inequalities present in the US justice system requires a myriad of diverse solutions from all levels of government, including direct action from all three branches. Policing reforms, improvements to federal safety-nets for vulnerable populations, and stricter judicial oversight would all improve judicial outcomes as well. However, considering that many of the core problems stem from inadequate funding, instituting various funding reforms would be the most effective solution towards addressing the issue of insufficient public defense and working towards genuinely fair trials for lower-income and working-class individuals. 

Providing more base funding to public defense would incentivize a larger number of people to pursue it as a career. Simply increasing the number of available public defenders would lessen their individual workloads and ensure that clients are able to access larger time slots with more in-depth counseling prior to their trials. State governments clearly already have this funding available, since they fund prosecutors at a significantly higher rate. Furthermore, states could divert existing funds being put towards policing specific communities into providing more adequate legal representation instead. 

Providing this funding would also allow for public defenders to better access benefits like health care and take on less work while still paying off their (on average) $160,000 law school debts. Incentivizing a larger applicant pool would also inherently encourage a greater diversity of candidates, which, considering that around 80 percent of public defenders are white, would work to better address the issue of implicit racial bias worsening defense quality. This implicit bias is especially impactful in situations where time is limited, individuals are mentally taxed, and/or decision making is more discretionary, all of which are standard characteristics of public defenders’ work. A more diverse candidate group might also go on to improve judicial equity through work as attorneys, paralegals, judges, or other judicial employees. 

These funding reforms, which could directly address many of the public defense system’s most pressing flaws, would work even better in conjunction with other congressional or judicial reforms. New policies could improve clients’ abilities to request new legal counsel or postpone trials until adequate counsel has been accessed, guarantee clients a specific amount of time for counsel with an attorney, or even establish a statewide independent agency charged with overseeing public defense and insulating the judiciary from political influence. Any such policy, while it still might not address systemic inequality or every issue present in the judicial system, would provide clients with a greater sense of control regarding their own legal representation and experience. Public defense reforms are necessary in order to guarantee equitable treatment under the law, improve faith in the judicial system and public institutions, promote proper judicial outcomes, and preserve the intent behind the Sixth Amendment that both sides have quality representation. 

Any of the proposed reforms could be implemented with oversight from the Attorney General, an independent agency, or in conjunction with congressional legislation. Congress could also place more emphasis on passing the Reverse Mass Incarceration Act, which would supply states that reduce incarceration with federal grants and reduce the workload of public defenders as a result. 

Our justice system claims to center around the conviction that each person is innocent until proven guilty. It’s incredibly difficult to see how this can be true, though, when defendants are being ushered into the courtroom with an attorney they haven’t met and who has barely had time to read over their case, if a lawyer is even present at that point. Many of these clients are facing a state-led prosecution of multiple lawyers, all of whom are well-paid, well-versed in the intricacies of the case, and aware of the public defender’s likelihood to pursue a plea bargain. In this era of national reckoning in which we are attempting to reconcile our nation’s past and persisting biases with its promise of freedom and equal opportunity, there’s never been a more opportune moment to pursue sensible and progressive public defense reform.