ANALYSIS: Judicial funding disparity puts justice in peril

Let's look at the big picture before rushing to conclusions about weighing advantages and disadvantages between prosecutors and public defenders.

Justly or not, public defenders often get a bum rap.

What is the success rate of public defenders?

While the success rate for other defense attorneys edged up only from 12% to 13%, for public defenders it nearly doubled, soaring from 18% to 35% during the same period from 2008 to 2019.

What skews the view?

Top law students split between big firms, prosecutors, and public defenders because of different priorities: big firms offer prestige, big money, and specialized work; prosecutors offer trail experience and public service; while public defenders (PDs) provide intense, fast-tracked courtroom experience, a strong sense of justice, good work-life balance, and opportunities for loan forgiveness, often attracting those passionate about indigent defense and becoming great trial lawyers quickly before potentially moving on.

Some new attorneys are attracted to a stable job, avoiding the expense and risk of opening a private office or competing at a large firm.

Prosecutors have certain advantages over defense attorneys, legal insiders say.  They see it in daily practice.  Fair or not, prosecutors have significantly more funding, investigators, and paralegals compared to public defender offices, case studies reveal.

Glaring disparity

When BJS data from 2007 and 2011 were adjusted for 2022 inflation, an independent analysis found that state prosecutor offices received approximately $7.8 billion in state funding, while public defense services received only about $2.92 billion. This means prosecutors had 2.671 times the economic resources.

Public defenders often handle a large volume of cases and have less time for in-depth investigation and client preparation than prosecutors. Some public defenders complain about short court-date notices.

In South Carolina, federal funding often goes to law enforcement/prosecution, widening the gap, and defense funding struggles to keep pace with prosecution budgets, statistics reveal.

While S. C. Law explicitly guarantees the right to counsel and a fair trial, independent reports from organizations such as the ACLU and the National Association of Criminal Defense Lawyers (NACDL) indicate that the public defense system is significantly underfunded compared to the prosecution, resulting in systemic disadvantages for indigent defendants. This de facto disparity in resources creates an imbalance in the legal system, said the NACDL.

Paradoxically, numerous studies and legal experts, including the National Bureau of Economic Research (NBER), the UNC Criminal Justice Innovation Lab, and the California Policy Lab, argue that public defenders often outperform court-assigned private lawyers due to better resources, specialization, and institutional support, leading to lower conviction rates and shorter sentences, though some research suggests mixed results based on specific systems and locations. Radha Avenger has used federal data to show public defenders achieve better outcomes.

Other sources include LawInfo.com and Prison Legal News.

Some attorneys have asked, if public defenders have achieved better outcomes with reduced funds and resources, imagine how much better outcomes would be with equal funding?

Can you see the record of public defenders?

To determine a record of a public defender, check public court records like PACER or local court dockets, the state bar association websites, online reviews, and the public defender's office directly for performance insights, though they won’t share win/loss ratios. Focus on case outcomes and professional conduct.

How can you request another public defender?

First talk with your current defender to resolve issues; if that fails, write a formal letter to the judge outlining specific problems, like missed meetings, lack of communication to show a breakdown of representation, as judges rarely grant switches for simple personal clashes, but may for serious ineffective assistance, though they usually appoint another random public defender, not one you choose.

Though underfunded, adroit defenders need only raise a reasonable doubt to prevail in a criminal jury trial.

How achieved

By highlighting weaknesses, inconsistencies, and alternative explanations in the prosecution’s case to prevent the jury from reaching the “firmly convinced’ standard required for a conviction.

Some legalists wonder if judges with prosecutorial backgrounds unconsciously favor the prosecution, and prosecutorial power in charging decisions heavily influences case trajectories.

An advocacy group, the Sixth Amendment Center, says that South Carolina needs to address funding imbalances to meet constitutional standards for public defense.

One source says the shortfall is $10,000 per defender per year. It requires innovative funding to achieve equity in funding.

Multiple groups and entities are advocating for greater funding for public defenders in South Carolina, including the South Carolina Commission on Indigent Defense (SCCID), the South Carolina Bar, and various national legal organizations.

Both the prosecution and the public defender have the legal authority to request and obtain subpoenas from the court clerk or a judge. The perceived “advantage” of the prosecution often stems from the greater resources available to their side: law enforcement, forensic scientists, more funding, and the investigative powers associated with the grand jury process, not the power to issue a simple trial subpoena.

Attorney Jennifer Burnett makes a strong case, arguing that justice is in jeopardy due to this imbalance.

Public defenders handle about 32 percent of indigent cases, and the Office of Indigent Defense Services contracts with private attorneys to handle the rest. But the 2011 fiscal year shortfall puts that legal service in jeopardy. Assistant Director Danielle Carmen said the shortfall will force the office to stop or delay paying appointed private attorneys by mid-May. That could be bad news for indigent defendants, according to Carmen.

“You get what you pay for in this world— there is a corresponding impact on quality when you don’t pay people a fair wage,” she said.

Because the state is required to provide that legal defense to people who can’t afford it, North Carolina could face legal liability if the program is underfunded.

“Indigent defense is not an optional expense for state governments,” said Mary Schmid, senior counsel for the Criminal Justice Program at The Constitution Project. “While other state budget expenditures may be completely discretionary, funding for indigent defense is simply not.”

That’s because in 1963, the U.S. Supreme Court, in Gideon v. Wainwright, ruled that defendants charged with crimes that carry a prison sentence are guaranteed the right to counsel, even if they cannot afford to hire an attorney.

In the face of an economic recession and budget constraints, providing enough public defenders is getting harder for states. As states struggle to fund mandatory programs such as education, unemployment insurance, and Medicaid, budgeting for the criminal justice system can be particularly thorny. That’s because underfunding could lead to legal battles over the constitutionality of budget cuts to the public defender system.

The South Carolina Association of Lawyers (SCAL) and related bodies consistently highlight that inadequate funding cripples public defender services, leading to overburdened attorneys, delayed justice, potential dismissed cases, and difficulty retaining talents, arguing that current resources fail to meet the constitutional mandate for effective counsel, with efforts focused on legislative fixes like better pay, more staff, and clear funding streams for municipal court representation.

That’s what happened in Montana. After the American Civil Liberties Union sued the state for failing to provide adequate public defense for impoverished people, the state legislature established the public defender system in 2005.

“Our agency is committed to meeting our mission to provide quality legal services for those who qualify, even in the face of fiscal constraints,” said Harry Freebourn, administrative director for Montana’s public defender system.

Those fiscal constraints—an $800,000 shortfall in this budget cycle—are compounded by a 4 to 7 percent increase in the caseload for the state’s public defenders over the last two years.

Demand Up, Funding Down

Like many state programs, the public defender systems are suffering. In an economic downturn, more defendants qualify for services, while cash-strapped programs struggle to keep up with demand and still provide quality legal services.

—Danielle Carmen, assistant director of North Carolina Office of Indigent Defense

These programs were facing serious funding difficulties even before the current economic crisis. In a 2009 meeting of the American Bar Association House of Delegates, Attorney General Eric Holder addressed the growing problem of underfunded indigent defense systems.

“Resources for public defender programs lag far behind other justice system programs,” he said. “Defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients.”

While the right to indigent defense is well-established, the structure and level of ongoing support of those systems vary significantly among states. Some states are entirely responsible for funding and oversight of indigent defense programs, while in others these responsibilities primarily fall on the county or are shared by local and state governments.

Because public defense programs are almost exclusively funded by state or local coffers, those programs are particularly vulnerable to changes in fiscal conditions. In Oklahoma, for instance, state budget shortfalls have led to staffing cuts in the state’s indigent defense program.

“Our problem is, compared to other agencies, we really don’t have any other funding source besides the state legislature,” Joe Robertson, the Oklahoma Indigent Defense System’s executive director, told the Norman Transcript.

In addition to differences in funding structure, the administration of indigent defense programs differs from state to state. According to a recent report published by the American Bar Association, 27 states substantially or completely organize their defense programs on a statewide level; 19 of those states have a state commission that supervises the state’s programs, while in the remaining eight states, a state public defender, rather than a commission, provides oversight. The other 23 states have either a state commission with partial authority over indigent defense, a state appellate commission or agency, or no state commission at all.

Depending on the state administrative structure, public defense clients may be represented by attorneys working for state- or county-run public defender offices or by private counsel appointed by the court or a public defense panel, like in North Carolina.

States Could Face Legal Challenges

When it comes to criminal defense, quality and access become very significant matters, protected by the state and federal constitutions.

“We’re a constitutional function of government,” Robertson told the Norman Transcript of the Oklahoma Indigent Defense System. “State and federal government requires that indigent defendants be furnished the effective assistance of counsel at the government’s expense.”

States that fail to adequately fund or administer their public defense systems could face problems. More than two dozen states have faced legal challenges to their programs in recent years.

“When state legislatures refuse to provide adequate funding to indigent defense systems, as they are constitutionally obligated to do, states face the real possibility of litigation against the state, as we’re seeing now in states like Michigan, New York, and Florida,” Schmid said.

So as caseloads increase and resources dwindle, public defenders may find themselves backed into a corner.

“Defense attorneys who are forced to take on more clients than they can competently represent simply may have no other option than to file a lawsuit to obtain the funding necessary to protect the constitutional rights of the accused,” Schmid said.

Innovative Ways to Use Federal Funding

The U.S. Department of Justice allows states to use a portion of their Byrne Justice Assistance Grants, or JAG, funding for indigent defense, which has been designated as a key priority area. “Many states have consistently used (JAG funds) exclusively for police and prosecutor activities, exacerbating the already existing gap between law enforcement and indigent defense spending,” Mary Schmid, senior counsel for the Criminal Justice Program at The Constitution Project, said. “States should take advantage of this funding stream to assist them in meeting their obligations.” Here are some innovative ways states use that money for public defender programs, according to a recent survey by the National Criminal Justice Association.

1. Minnesota is using the funds to offset decreases in state funding that cut 53 public defender positions. 2. Colorado is using the funds to support a pilot project demonstrating new practices for bail administration and pretrial services. 3. Delaware is using the money to fund vacancies in the public defender’s office for case processing needs. 4. Kentucky is using the federal dollars to fund social workers who will work with clients to identify needed services and sentencing options using evidence-based practices. 5. New York is using the funds to enhance defense services, leading to the expedited flow of drug and violent offenders through the system, and ultimately improving case outcomes.

While specif, real-time funding graphs for South Carolina prosecutors versus public defenders aren’t readily available in snippets, reports show significant recents efforts and increased funding for SkC Pubic Defenders, boosting staff and salaries after years of disparity, though prosecutors often argue for larger budgets due to heavier legal burdens, creating an ongoing dynamic of resource allocation challenges for defense in the state.

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