Thursday, December 22, 2011

With Lawyers for Some

By William Fisher

The nation’s legal aid organizations are intended to provide lawyers for the poor. But today these agencies are overburdened, underfunded, and inefficient.

Yet, the non-profit, Washington, D.C.-based Justice Policy Institute Justice (JPI) says, “At a time when more poor people are seeking legal help, legal services programs are bracing for more federal funding cuts.”

The JPI says, “Inadequate public defense systems lead to more incarceration, in the form of unnecessary pretrial detention, increased pressure to plead guilty, wrongful convictions, excessive sentences and increased barriers to successful community re-entry. Incarceration, in turn, can lead to higher costs for individuals, families, communities and taxpayers.”

In criminal cases, the Constitution guarantees a person a lawyer if he or she can't afford to hire one. But in civil cases, low-income individuals must fend for themselves.

Recently, the Institute reports, a U.S. House Appropriations Subcommittee proposed cutting legal aid funding by 26 percent for the next funding cycle. States like Mississippi receive 80 percent of their funding from the federal government, says Rebekah Diller, deputy director of the justice program at the Brennan Center for Justice at New York University School of Law.

"It's a terrible time to cut legal aid programs," Diller said. "We are really concerned... Everybody is still suffering with the recession."

Plus, Diller says, areas like Mississippi are dealing with the aftermath of tornadoes and flooding, which have increased the need for civil legal help for low-income residents.

Last year, the two Legal Services programs in the state, Mississippi Center for Legal Services and North Mississippi Rural Legal Services, lost about $228,000 when federal funding for such programs were cut 4 percent, said Sam Buchanon, executive director of Mississippi Center for Legal Services.

"We are praying the proposed 25 to 26 percent cut in funding doesn't pass," Buchanon said. "That would devastate programs."

If the proposed 26 percent cut goes into effect, national funding would be down to the lowest level since the start of the program in 1974, Diller said.

At the same time, the national poverty population eligible for civil legal aid  grown by 17 percent since 2008 to an all-time high of 63 million Americans.

The federal Legal Services Corp. - which distributes grants to local programs -reports that from 2009 to 2010, foreclosure cases were up 20 percent at LSC-funded programs; unemployment compensation cases increased 10.5 percent; landlord-tenant disputes rose by 7.7 percent; bankruptcy, debt relief and consumer finance cases were up by nearly 5 percent.

Mississippi Center for Legal Services serves 43 counties in the central and southern part of the state and has offices in Jackson, Hattiesburg, McComb and Biloxi. North Mississippi Rural Legal Services covers 39 counties in the northern part of the state with offices in Oxford, Clarksdale, Greenville, Tupelo and West Point.

Last year, the legal services programs closed about 10,800 cases.

Mississippi currently receives more than $5 million annually in federal legal service funding.

As more people seek help, Buchanon said the Mississippi Center for Legal Services doesn't have the manpower to service all the requests.The same holds true for the North Mississippi Rural Legal Services, according to executive director Ben Cole. Cole said 60 percent of the people who seek the agency's services are turned away because it doesn't have enough workers.

According to the Institute, “many systems across the country have been in a state of ‘chronic crisis’ for decades. The defender systems that people must rely on are too often completely overwhelmed; many defenders simply have too many cases, too little time and too few resources to provide quality or even adequate legal representation.”

JPI adds that “only seven per cent of all county-based public defender offices have enough investigators to meet national guidelines.”

The following are some of the main findings in the Justice Policy Institute’s new report, System Overload: The Costs of Under-Resourcing Public Defense.

The majority of public defender offices and systems have excessive caseloads. Only 27 percent of county-based public defender offices and 21 percent of reporting state public defender systems have enough attorneys to meet caseload guidelines.4 Statewide systems had only a median of 67 percent of the number of attorneys necessary to meet caseload guidelines. Nearly 60 percent of county-based public defender offices
do not have caseload limits or the authority to refuse cases due to excessive caseloads.

Overwhelming caseloads can prevent even the most dedicated and talented attorneys from providing their clients with a quality defense. A lack of resources limits the ability to prepare and investigate. Only 7 percent of all county-based public defender offices have enough investigators to meet national guidelines and 87 percent of small county-based public defender offices do not have a single full-time investigator.

When defenders do not have access to sufficient resources they may be unable to interview key witnesses, collect or test physical evidence, or generally prepare and provide quality defense for their client, resulting in poorer outcomes for the client.
Public defense systems don’t have enough independence or oversight. Without independence from judicial and political influence, the defense system’s legitimacy can be compromised. A lack of oversight has also
contributed to a system in which a person’s access to justice varies wildly depending on the zip code or county in which he or she was accused of an offense.

Only 27 percent of county-based public defender offices and 21 percent of state public defender systems have enough attorneys to meet caseload guidelines.

A lack of resources limits training opportunities. Ongoing education and training is vital, especially with technological advancements in DNA and forensics, which can make cases more time consuming and complicated. Without this training—or the time to use it—defense attorneys may be less equipped to test the prosecution’s evidence at trial or advise a client regarding a plea offer, possibly leading to a conviction or harsher sentence for their client.

Lack of quality defense may lead to pretrial detention. In places where defender caseloads are very high or the court fails to appoint counsel in a timely manner, poor people may spend a lot of time in jail before ever speaking to a lawyer or appearing in court.

Unnecessary or prolonged pretrial detention due to case delays, late appointments of counsel, lack of or limited pretrial advocacy can also increase costs. Pretrial detention is expensive and can have a negative
impact on people and their families.

Lack of quality defense could lead to excessive prison sentences. A general lack of advocacy at sentencing, coupled with a lack of investigation throughout the process can lead to inappropriate and unnecessarily harsh sentences.

A lack of quality public defense and the costs that accompany them disproportionately affect people of color and those with low income, as public defense is provided to people who cannot afford to hire an attorney.
Furthermore, people from communities with low income are more likely to be arrested than people from more affluent communities. Research also shows that the justice system in general also disproportionately affects people of color. As people of color are also disproportionately affected by poverty, they are also more likely to require court appointed counsel when arrested.

The JPI report contains a series of recommendations, including integrating a holistic and community-based approach to public defense, collecting better data, conducting more empirical evaluations of the impact of public defense systems on people, communities and criminal justice, and. involving public defenders and affected communities in the policy making process.