Seventy-five days: That’s how long a Wisconsin man languished in jail, deprived of his Sixth Amendment right to counsel. With his case helping drive a new class-action lawsuit, Wisconsinnow joins an ignominious group of states, including Louisiana and Missouri, in which the courts have been asked to correct wildly deficient spending on public defense.
The suggestion that the courts should appropriate legislative budget prerogatives may incense these states’ Republican legislatures. However, true conservative outrage should be saved for the fact that this fight had to go to the courts in the first place.
Neither the Sixth Amendment nor Supreme Court rulings mandating court-appointed counsel have adequately protected the state of public defender offices across the country. For example, despite the American Bar Association’s suggestion that certain felony cases in Missouri should require about 47 hours of defense work, extraordinary caseloads mean that the actual time spent on each case is closer to nine hours. With millions of new criminal cases filed each year and a majority of criminal defendants poor enough to qualify for public counsel, Missouri’s public defender officers are hardly an outlier: One estimate found that nationwide, roughly three quarters of public defender offices regularly exceed recommended caseload limits.
Conservatives’ willingness to cede to liberal groups the movement to remedy the plight of public defenders is, to say the least, perplexing. From individual rights philosophy to budgetary prudence, public safety to small government, the aims of conservatism and a vigorous defense of the Sixth Amendment nestle together like peas in a pod.
Because conservatism is grounded in fidelity to the Constitution, conservatives often turn to the Founding Fathers for guidance on issues. As the Founders knew all too well, the government is at its most powerful and coercive in the criminal justice system. This is why the Bill of Rights reads largely as a list of the rights of the accused. In that context, the failure of our public defense system to safeguard the rights of the average citizen is nothing less than the kind of affront to the Constitution that conservatives have traditionally abhorred.
The practical consequences of shortchanging these rights should be equally troublesome to conservatives. When defense attorneys lack the time to give cases the attention they deserve or defendants the advice they need, deciding who ends up in jail may have little to do with actual guilt. A quick look at the work of the Innocence Project highlights how quickly and dramatically a life can be ruined for want of good legal advice.
For conservatives more comfortable supporting law enforcement than empathizing with the accused, the choice between the two is actually a false one. After all, the guilty walk free when the innocent are incarcerated, and neither law enforcement nor the public cheers that outcome.
Right-of-center policymakers might recoil at the idea of adding spending obligations to strained state budgets. But the alternative (warehousing hundreds of thousands of people in jails) comes at a massive cost to taxpayers. Pretrial detainees alone cost taxpayers approximately $38 million per day. With even short jail stays potentially increasing recidivism rates, unnecessary incarceration can lead to additional criminal justice costs down the road. If there were ever a conservative spending proposal, surely it would be one that prevents unnecessary spending and protects the constitutionally guaranteed rights of citizens against the power of government.
Skeptical conservatives don’t have to accept this proposition in the abstract; many conservatives already do support increased spending on public defense. Idaho, a red state, passed a bill that allocates $5.5 million for improvements in its public defender system. The effort was spearheaded by a pro-life, pro-school-choice, gun-store co-owner, and Republican representative. Likewise, deep-red Utah appropriated $2 million to indigent defense. Republicans are currently leading efforts to enact similar reforms in Indiana, Mississippi, and Tennessee.
Ideally, increased public-defense funding would be paired with policies that reduce the number of cases public defenders need to handle in the first place — such as programs that allow law enforcement to divert mentally ill or drug-addicted individuals to treatment rather than the justice system, as well as efforts to decriminalize certain low-level misdemeanors. Likewise, bail reform policies that allow low-level defendants to continue their lives outside of jail while awaiting trial could reduce the pressure on public defenders to plead their cases quickly. Still, increasing public-defense funding is a crucial first step.
Put simply, states can and need to do more to support indigent defense. Conservatives don’t need to wait for a court to say so and shouldn’t be shy about giving public defense a more public defense.
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