National Association of Criminal Defense Lawyers Issues Report on Federal Indigent Defense
Date:  09-15-2015

In the past, Reentry Central has published several articles concerning the crisis indigent defendants face as budgets for their legal defense are slashed.

Now, the National Association of Criminal Defense Lawyers has published a report, Federal Indigent Defense 2015: The Independence Imperative, that offers a sharp analysis of how the federal indigent defense system, once hailed as the “gold standard,” is now tarnished and devalued.

The preface of the report begins:

“Short of warfare, there is no more awesome use of governmental power than the power to prosecute. A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself. For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution. The Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

Notwithstanding the plain language of this core provision in the Bill of Rights, the road to ensuring that meaningful and effective counsel is provided to all accused persons has been arduous. It was not until the Gideon case in 1963 that the United States Supreme Court conclusively held that counsel must be afforded to those too poor to hire a lawyer in all felony prosecutions. And even though that right has been extended to include many misdemeanors, it is well recognized that the nation’s indigent defense infrastructure remains wholly inadequate. Commentators, lawyers, and public officials, including the Attorney General of the United States, have described the nation’s indigent defense system as in crisis. Because the constitutional mandate to provide counsel never established a funding mechanism, each state approaches the responsibility differently, with very few providing statewide structure or adequate funding, and many foisting the responsibility onto its counties.

In contrast, the federal indigent defense system, which was put in place by the Criminal Justice Act of 1964, provides both structure and a reasonably dependable funding stream. It also provides for a healthy mix of both institutional defenders and private counsel. For this reason, those who labor to reform state indigent defense systems have often looked with envy at the federal model, and held it up as a gold standard. As a result, when a federal budget crisis erupted in Washington, D.C., which resulted in deep cuts in funding for federal indigent defense, the prospect of a decimated federal indigent defense infrastructure reverberated throughout the nation. If a shining light in the country’s indigent defense system was itself so vulnerable to shifting political winds, was there something fundamentally flawed with that model?”

Access the full report here.