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Observing the Sixth Amendment in the breach


Radley Balko observes that the state of indigent defense in most states is such a mess that one of the most important protections in the Bill of Rights has been effectively nullified:

Today, criminal cases often include surveillance video, body cam or dash cam footage, cell phone data, computer records, or other data. If it isn’t part of the state’s case for a conviction, it could be part of a defense’s case for acquittal. Ideally, a public defender would have the resources to tackle all of this. Unfortunately, while this approach is increasingly common, it’s still pretty rare.

All of which is to say that even those 1973 figures that almost no one followed were still way too high. There’s just no way a public defender today could handle that many cases and provide an adequate defense, especially without access to investigators, mental health professionals, and office staff.

The new RAND study is an attempt to bring those old recommendations up to date. It was based on data from 17 studies of public defender caseloads between 2005 and 2022. A panel of 33 experts nominated by major criminal defense organizations then applied that data to make the new recommendations.

Instead of the five categories of cases recommended by the ABA, the RAND study breaks out 11 categories of cases. This makes sense. A case that could result in life without parole is considerably more demanding than a low level felony.

These new recommendations aren’t just more up to date, they’re more relevant and specific. They also paint a pretty bleak picture. They show that not only is a constitutionally adequate defense rare in the U.S., it’s all quite a bit worse than we thought.


This got me thinking about not just the pervasiveness of the problem today, but about those studies and reports that have regularly popped up throughout my career. It isn’t just a COVID thing. It isn’t just a down economy thing. It isn’t a blue or red state thing. We have consistently, systemically, and thoroughly failed to provide adequate indigent defense for decades, even after bright, red, flashing warnings that failing to do so can have devastating consequences.

So over the past week, after reading the RAND study, I started going through the states alphabetically, doing searches for each state with phrases like “public defender caseload” or “indigent defense problems.” I searched through my emails and notes, and spoke with some people in the public defender world. I did all of this with a pretty broad question in mind: How bad is it?

However bad you think it may be, it’s worse. For most states, you needn’t go back 20, 15, or 10 years to find evidence of a broken system. For most, you can find stories from the last two or three. For most states, you can find stories about a public defense crisis within the last few years and also stories about a crisis five years ago. And 10 years ago. And 20.

So over the next few months, I’m going to go through each state. I’ll look at how public defense is funded, how it’s administered, and summarize investigations, studies, and surveys from that state. I’ll put up five posts after this one, each looking at 10 states.

This is the kind of journalism that is worth supporting, even if the Washington Post would rather have 7 different op-ed columnists write the same column about how Roe v. Wade would never be overruled and it would be no big deal if it happened anyway.

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