On your way home, a police car pulls you over. The officer asks if you know why she pulled you over. You do not. She mentions that you failed to use your turn signal when you changed lanes. You are pretty sure you did use your turn signal and start to argue. The officer interrupts and asks if you have been drinking. You mention that you have been out for drinks, but did not have more than a glass or two of wine. The officer asks you to step out of the car and then asks you to perform the three standardized field sobriety tests: the walk-and-turn test, the one-legged stand test, and the horizontal-gaze nystagmus. Five years ago, you hurt your right knee running, and you try to tell the officer that you may not be able to perform the tests. The officer asks you not to interrupt and to listen to the instructions. At the end of the tests, the officer announces that you failed and asks you to take a Breathalyzer, which comes in above the legal limit. She then books you for DUI and carts you to the hospital for a blood test.
Because you were arrested on a Friday evening, you may have to spend the weekend in jail, awaiting a bail hearing on Monday morning. If convicted, you will not only risk imprisonment but will also lose your driver’s license for one year. For a pharmaceutical sales rep, that is career suicide.
Fortunately for you, there are several potential defenses: If the officer lacked reasonable suspicion to pull you over (if you did in fact use your turn signal, for example), you can have the charge thrown out. Many squad cars have video recordings, but copies are available only if properly requested. If the officer administered the field sobriety tests incorrectly, or if your knee made performance impossible, you may also have a chance. You could also argue that the Breathalyzer was inaccurate (a surprisingly common occurrence).3 Even the results of a hospital blood test can be debunked, because they usually occur at a time lag from the driving itself.
Even a routine case, then, involves complicated moving parts and high stakes for the defendant’s liberty versus society’s safety. Unfortunately for you, presenting any of these defenses is highly technical and expensive, and well beyond the ability of almost any pro se defendant. Hiring a lawyer to defend a DUI case is not cheap. In Knoxville, Tennessee, the typical charge just for the first step of the process (the preliminary hearing) is between $2,000 and $10,000. A representation from first appearance to a jury trial can run into six figures. People are willing to pay these prices because the ramifications of a DUI are so weighty. An appointed lawyer is a possibility, but most middle-class individuals earn too much to qualify. Many states set the eligibility limit at 25% above the federal poverty line, so in 2016 a single person would need to earn less than $14,850 a year to qualify.4
Even if you earn that little, good luck getting an appointed lawyer to pursue each of the avenues of possible defense outlined above. First-offense DUI is frequently a misdemeanor, meaning a fee cap of as low as a few hundred dollars, hardly enough to cover more than a few hours of work.
In theory, American criminal justice depends on a contest of equals. In this boxing ring, the defense lawyer is the champion in the defendant’s corner. Our adversarial system counts on the defense lawyer to challenge the prosecution’s case vigorously, to test whether a defendant is guilty and what punishment he deserves. Criminal defense lawyers are supposed to ensure the accuracy and fairness of lineups, police interrogations, guilty pleas, trials, sentencings, and appeals. To defend well, a defense lawyer must meet with his client multiple times to build trust and draw out the whole story as well as leads on potential alibi and character witnesses. If his client is held in jail, he must repeatedly wait in line and clear security pat-downs and scans in order to visit him. He must then track down potential defense witnesses, spend time talking with them, and locate everything from medical records to forensic experts. He must become familiar with the entire case and consider possible defenses and alternative explanations, as well as factors that might warrant a reduced or alternative sentence. He must negotiate over a possible plea bargain, stand ready to try the case if needed, and advocate at sentencing and on appeal, which requires researching and writing a substantial appellate brief. All of these steps take time—weeks or days, not just hours—but harried defense attorneys rarely have time to spare.
The reality falls far short of this ideal. As this chapter explains, criminal caseloads are too great, and funding too scarce, for defense lawyers to match the prosecution. Defense lawyers are paid significantly less than prosecutors, making it hard to attract talent, and they lack the prosecution’s police investigators, crime labs, and other support. They must also juggle hundreds of cases at a time, making it impossible to investigate, analyze, and vigorously defend each one. Each jury trial requires dozens if not hundreds of hours for pretrial preparation, motions, witness interviews, jury selection, jury instructions, and rehearsing direct- and cross-examination as well as opening statements and closing arguments. Instead, defense lawyers plea bargain most cases quickly, sometimes right after meeting their clients for the first time. In practice, they can do little to test guilt.
There is another casualty: the jury trial. Anyone with a passing familiarity with the U.S. Constitution and Bill of Rights knows that the Framers counted on the jury to be the ultimate bulwark against government power. Instead, the jury trial has been virtually sidelined by rampant plea bargaining in a criminal system that could not possibly try even 10% of the cases filed.
Each year, American police make 13 million arrests. Half a million are for serious violent felonies like murder, rape, robbery, and aggravated assault. Arrests for serious property crimes (like burglary and theft), drug crimes, driving under the influence, and non-aggravated assaults number about a million and a half each. The indigent defense system is poorly equipped to devote individualized attention to this constant barrage of cases for two related reasons: underfunding and overwork, which together breed poor performance.5
Underfunding
Half a century ago, Gideon promised equal justice to rich and poor alike, but Gideon’s promise remains chronically underfunded. At least once a decade, a new report comes out decrying the state of Gideon’s promise and noting the problem has only gotten worse since the last report. In the early 1970s, just a decade after Gideon, money and manpower shortages had “seriously crippled” effective representation, including the extension of appointed counsel to misdemeanor cases. In the 1980s, funding for indigent defense remained “grossly inadequate.” By the 1990s, “[t]he long-term neglect and underfunding of indigent defense ha[d] created a crisis of extraordinary proportions in many states throughout the country.” In the early 2000s, the ABA marked Gideon’s fortieth anniversary with a report lamenting “that a significant funding crisis persists today.” A 2009 report noted that, because indigent defense costs keep rising and the economy remains weak, “Funding shortages are guaranteed to worsen.” And in 2013, a report marking Gideon’s fiftieth anniversary found that the result of these funding shortages was “staggeringly low rates of compensation for assigned counsel across the nation.” While some states have raised funding or taken over responsibility from counties, sometimes funding increases have not even kept up with inflation, let alone caseloads.6
While federal and state governments have large criminal justice budgets, totaling $179 billion annually in 2007, most of that money goes to police, prosecutors, crime labs, prisons, and the like. Only 2% of that total supports indigent criminal defense. The amount spent on indigent defense each year, $3.5 billion, sounds like a lot, but that total must cover more than a million felony cases and at least as many serious misdemeanors each year. That means each case averages a total of perhaps one workday of a defense lawyer’s time, with little support for private investigators, forensic science experts, and the like, let alone for the days and weeks needed to go to trial. State and county defense budgets are more likely to be cut than other parts of the criminal justice system and much less likely to keep up with inflation and rising criminal caseloads.7
Across the country, indigent defense receives far less money than prosecution each year. In Tennessee, for example, the $130 million-plus spent on prosecution is more than double the $57 million for indigent defense; in California, the disparity is more than $300 million
