Tuesday, November 3, 2015
Eve Brensike Primus (University of Michigan Law School) has posted Culture as a Structural Problem in Indigent Defense (Minnesota Law Review, Vol. 100, 2016, Forthcoming) on SSRN. Here is the abstract:
Indigent defense lawyers today are routinely overwhelmed by excessive caseloads, underpaid, inadequately supported, poorly trained, and left essentially unsupervised. They face an avalanche of hostility every time they walk into court as judges, prosecutors, and court personnel pressure them to process their clients through the criminal justice system. Many zealous defenders simply burn out and leave the job. Of those who remain, many perform valiantly. But the sheer reality of the difficult task that these lawyers are expected to do is often overwhelming. Especially in contexts where indigent defense lawyers lack institutional support, even lawyers who wish to take their obligations seriously sometimes find themselves overwhelmed and gradually become less sensitive to the routine injustices of the system. Others become cynical and depressed and unhappily continue in the job — aware of the problems, but feeling powerless to effectuate change.
The result is a serious cultural problem in indigent defense, especially in jurisdictions where such defense is handled by lawyers lacking the community and institutional reinforcement that strong public-defender offices can provide.
In this essay, I will argue that attempts at reform should focus on changing this cultural problem in indigent defense delivery systems. As was true in 1961 (when the symposium that this essay celebrates was published), there is now a feeling that change is coming. Countless commissions have issued reports documenting excessive defender caseloads, a lack of independence, and blatant violations of the constitutional right to counsel across jurisdictions and making recommendations for improvement. Many states have developed bipartisan Indigent Defense Commissions to investigate best practices and implement more effective and efficient delivery systems going forward. Legislators have convened working groups and have proposed legislation to address the crisis. President Obama created the Office for Access to Justice, an initiative designed to analyze and think about how to improve indigent defense delivery systems. And symposia abound detailing the problems with indigent defense delivery systems and recommending potential solutions.
A focus on improving the culture of indigent defense delivery systems can and should infuse current reform proposals and inform change going forward. Perhaps this time, we can learn from some of our past mistakes and move toward accomplishing some of the laudable goals that many have been advocating for over fifty years.