CRF Blog

Triage and the Sixth Amendment

by Damon Huss

In Indefensible, an article at Reason.com, Clay Conrad argues that public defenders are too overloaded to protect the rights of the accused.

Public defenders are lawyers who work for the court system representing indigent defendants instead of maintaining their own practices….

Public defenders are often forced to take on caseloads heavier than any lawyer can competently or ethically handle. According to a 2005 report commissioned by the Missouri Bar, caseload, more than any other factor, determines which public defender offices do good work and which do not. No lawyer, no matter how skilled, can do a competent job on 200 felony cases a year. In some public defender offices, the caseload is more than twice that.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are “pled out” without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts. [more]

Conrad’s argument is echoed in a recent class-action lawsuit against Skagit County, Washington. The plaintiffs claim that their constitutional right to counsel has been violated because public defenders have as many as 1,000 or more misdemeanors assigned to them each year. The Washington State Bar has recommended that public defenders handle no more than 400 misdemeanors a year.

In 1963, the Supreme Court decided in Gideon v. Wainwright that states had an obligation under the Sixth Amendment to provide counsel for indigent defendants in criminal cases. CRF has a lesson about the Gideon case in Landmarks: Historic U.S. Supreme Court Decisions.