The Nation recently published this article calling on Hillary Clinton and Bernie Sanders to support increased federal funding to shore up state and local public defenders. This idea is not new. Indigent defense advocates have made similar proposals for decades, and the American Bar Association has been advocating for a federally funded Center for Defense Services since the 1970s (most recently with this 2013 resolution). With criminal justice reform on the political radar screen and the nation’s public defender offices entering their sixth decade of nearly permanent crisis, perhaps the time is right to revive discussion of federal funding for local public defenders. In this post I provide some historical context about past discussions of this issue.
The larger issue here is a mismatch between the requirements of American constitutional law and the federalist structure of American government. It is easy, and often quite justifiable, to blame state legislators for stingy appropriations for public defenders. But state legislators are working within a larger system that permits them to get away with underfunding indigent defense. A series of Supreme Court cases, including the landmark Gideon v. Wainwright (1963), require state courts to provide lawyers to poor people charged with crime. But the Court has never specified how exactly this requirement is supposed to be implemented—in fact, the Court has never even specified what level of government is supposed to pay for public defenders. States can be punished after the fact if they fail to provide individual defendants with effective counsel in the form of reversed convictions or habeas relief (although in practice even those remedies are hard to win), but the Court has never translated Gideon into forward-looking standards for how states are supposed to structure and fund their indigent defense systems.
It is not surprising that the Court has failed to set clearer standards. The right to counsel is unique in American law—it’s one of the few federal rights to positive government assistance, as opposed to a negative right against government interference—and there is no clear blueprint for how such a right is supposed to be judicially enforced. Moreover, the justices are typically reluctant—and in many situations, constitutionally or legally powerless—to micromanage state criminal justice systems. Nevertheless, the result is that public defenders have been left in the wake of Gideon to cobble together funding from an ever-fluctuating mix of local, state, federal, and private sources. I detail some of this history in my article What Gideon Did.
There is an alternative way of thinking about the right to counsel, however. Since the 1970s, some advocates have argued that the federal government bears responsibility for helping to fund indigent criminal defense. They argue that the right to counsel derives from the federal Constitution, and therefore, the federal government should pay for its implementation. For instance, in some of its reports in the early 1970s, the National Legal Aid and Defender Association argued that federal agencies should underwrite states’ implementation of the right to counsel (these are cited in What Gideon Did, pp. 54-55).
Now, in part those arguments were instrumental at a time when Congress was directing then-unprecedented flows of federal cash into state criminal justice systems through the Law Enforcement Assistance Administration (LEAA), established by the Safe Streets Act of 1968. Because a huge chunk of LEAA grants were used by local police departments to acquire weapons and equipment, the agency is mostly remembered today as an early harbinger of police militarization. But LEAA also funded a dizzying variety of small-scale projects across the criminal justice system. Between 1969 and 1977, LEAA directed $23 million into indigent defense—a tiny sliver in the larger pie chart of LEAA’s budget, but nevertheless an unprecedented boon for local public defender agencies. (I was recently on a conference panel discussing LEAA’s legacy, which I recapped here.)
For instance, in Boston, LEAA funds launched the Roxbury Defenders Committee in 1971—an innovative community-based public defender established in response to complaints that the Massachusetts state public defender agency was too distant—both physically and metaphorically—from African-American communities. The Roxbury Defenders Committee located its offices in the heart of Boston’s African-American community, hired predominantly African-American attorneys, maintained a 24-hour telephone hotline so potential clients could call as soon as they were arrested, and educated Roxbury residents about their rights through workshops, newsletters, and a call-in radio show. The Roxbury Defenders invented the template for holistic defense that is now considered the gold standard by many advocates, and practiced by national leaders such as the Bronx Defenders and the Neighborhood Defender Service of Harlem.
But efforts to establish a dedicated, permanent federal funding stream for indigent defense never gained traction in Washington. In 1979, Senator Ted Kennedy introduced legislation to establish a federally funded Center for Defense Services. Based on a proposal developed by the American Bar Association, the Center was envisioned as a Washington, D.C. congressionally chartered nonprofit that would administer federal grants to local and state public defenders, while also establishing and enforcing minimum quality standards for indigent defense. At the time, the Center for Defense Services made little progress on Capitol Hill. During the 1970s and ’80s, federal funding for legal assistance of all kinds was embattled—as evidenced by the Reagan administration’s efforts to gut the Legal Services Corporation, which funded civil legal aid agencies. After LEAA was phased out in 1982, some federal funding for indigent defense continued to trickle through various successor entities within the Department of Justice, but not on the scale necessary to make a real dent in the chronic crisis in indigent defense.
Perhaps now the time is right to revive the proposal for a federal Center for Defense Services. At the same time, any such proposal should be carefully designed to avoid perverse consequences. For instance, states might view federal funding for indigent defense as a substitute rather than a supplement, and reduce their own appropriations accordingly—undermining the goal of expanding resources for indigent defense. But, as Fordham professor John Pfaff notes in The Nation piece mentioned above, a well-designed grants program could be structured with incentives to prevent states from simply moving funds around. Similarly, Senator Kennedy’s bill would have required states to provide a minimum percentage of matching funds for any federal grants received. I am personally not a huge fan of matching requirements because in my research, I have encountered numerous instances where matching requirements had the effect of directing resources to those places that already had the most resources and political will (both of which it takes to appropriate matching funds), not to places with the greatest need or political resistance. These are the sorts of questions about program design that would need to be hammered out, should the idea gain political traction.
 Advocates often assume that the responsibility rests with the states, but many states require counties to foot some of the bill. Pennsylvania, alone among the states, provides no state-level appropriations, leaving counties to foot the entire bill. See the ABA report “State, County and Local Expenditures for Indigent Defense Services Fiscal Year 2008,” available here.
 Indigent defense has, however, been the subject of structural reform litigation in state and lower federal courts. Helpful discussions include Eve Brensike Primus, “ACS Issue Brief: Litigation Strategies for Dealing with the Indigent Defense Crisis,” September 2010, available here, and Cara H. Drinan, “The Third Generation of Indigent Defense Litigation,” 33 NYU Rev. L. & Soc. Change 427 (2013), available here.