Why Public Defenders Are Underpaid

If you have been charged with a criminal offense, the Sixth Amendment of the United States Constitution provides that you are entitled to the assistance of counsel for your defense. If you can’t afford a private attorney, Illinois law states that a Public Defender will be appointed to help (55 ILCS 5/3-4006).  Public Defenders provide legal representation in the areas of criminal, misdemeanor, juvenile justice, child protection, paternity, appeals, post-conviction and traffic cases.

It sounds good — but, unfortunately, the public defense systems may not be capable of providing the defense you deserve.  According to the U.S. Department of Justice, in 2007, about 73% of county public defender offices exceeded the maximum recommended limit of cases (150 felonies or 400 misdemeanors).  When attorneys are under-funded, their case loads can become so excessive that they may not be able to provide adequate representation. Also, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff.

The result is problems which can be devastating to those who have to rely on representation by a public defender. Recent studies have disclosed that innocent people have even been condemned to death, in part due to inadequate representation, in Cook County, Illinois (Chicago), although none of the overturned “death penalty” cases were actually represented by the Cook County Public Defender.

Right to Defense

The case that helped pave the way for all defendants to be guaranteed an attorney in criminal proceedings was Gideon v. Wainwright, 372 U.S.335 (1963). Gideon was a middle-aged Florida man charged with breaking into a bar and stealing money and beer.  He argued that he could not adequately defend himself and that a system that puts an uneducated person against a trained attorney is fundamentally unfair. The Supreme Court of the United States agreed and held that states are constitutionally required to provide a defense attorney to those who can’t afford one.

Following this decision, programs were created across the country to make this right available to people who were charged with crimes and could not afford an attorney to represent them.  But the programs have problems.

Problems For Defendants

Because public defenders are overworked and underpaid, it creates problems for the accused, including:

• Exorbitant trial delays — Roughly 500,000 pre-trial detainees sit in jail, some for years, before being found guilty of any crime. This is despite the premise that the accused is innocent until proven guilty.
• Excessive caseloads — Since the 1963 Supreme Court decision, America’s prison population has grown more than tenfold—from 217,000 inmates to 2.3 million — and the public defense system can’t keep up. On average, a public defender would need about 3,035 work hours—a year and a half—to do a year’s worth of work.
• Excessive plea bargaining — Excessive caseloads contribute to the fact that 95% of criminal cases end in plea bargaining as clients have little more than a brief conversation in the courtroom with a public defender before pleading guilty.  It’s been estimated that to complete the current caseload, about 6,900 more public defenders would be needed.
• Longer jail stints — In Chicago, people are spending longer stints in jail (an average of 56 days for those in on drug charges). Part of the reason is the use of continuances by overworked public defenders.  Those who decide to fight their case are forced to stay in jail longer than those who plead guilty.
• Racial implications — Black people are disproportionately caught up in the criminal justice system and therefore bear the brunt of public defender systems’ underfunding and overwork.

Possible solutions

What can be done about the difficult public defender situation?  One suggestion is to cut back on criminalizing the small stuff.  Misdemeanor charges that overwhelm caseloads might be as minor as putting your feet on a subway seat or riding a bike on the sidewalk.  Even if you don’t go to jail, there are consequences, as people convicted of misdemeanors may lose their jobs, subsidized housing, federal loans, or other public benefits.

Another suggestion is to encourage prosecutors, DAs, and judges to look at things differently and actually examine cases rather than just assume people are guilty and push them through the system.

It might help to provide better pay for contract attorneys and other non-full-time public defenders to assist with case overflow. Right now, the United States spends less on public defense as a percentage per capita than every single European nation.

Contact Us For Help

When you’re charged with a crime, you deserve the best defense available.  The skilled Illinois criminal defense lawyers at Wolfe & Stec, Ltd. offer a free initial consultation.  We believe each case is unique, with its own set of circumstances. We know the judges and the court system and will aggressively explore every avenue for your defense.  We examine the facts, the individuals involved, and the evidence available, and we work hand in hand with our clients throughout the criminal process. Our goal is always to minimize the negative impact of the situation and to focus on protecting your freedoms, liberties and rights.

Don’t delay — contact us to schedule your free initial consultation if you have been accused of any criminal charges.  Call 630-305-0222. We represent clients in DuPage County, Naperville, Aurora, Wheaton, Downers Grove and Bolingbrook, and the greater Chicagoland area.