Examining challenges facing public defenders

Public defenders who have faced interference by public officials and judges discussed their experiences and provided insights on how public defenders could become more independent during a recent ABA webinar.

The discussion comes as 2023 marks the 60th anniversary of Gideon v Wainwright, a landmark U.S. Supreme Court decision that ruled the Sixth Amendment of the U.S. Constitution requires states to provide lawyers to criminal defendants who cannot pay for their own.

Panelists said public defenders have struggled to get resources they need to provide quality legal representation for indigent clients.

They described problems including inadequate  funding for their offices, dismissal from employment and micromanagement of public defense offices.

Robert C. Boruchowitz, professor from practice and director of the Defender Initiative at Seattle University School of Law, said he was driving around one state with a chief defender when the governor’s office called to say that they wanted the chief defender to hire a particular person.

“Of course, when judges or governors control who gets to do public defense, they can either directly influence the practice or, by intimidation and implied threats, they can both determine who is hired and what kind of job they do often to the detriment of clients,” Boruchowitz said.

Panelists shared stories of chief defenders being fired because they requested more funding, made public disclosure requests about the prosecutors or asked for social workers. Others were fired because local elections changed the “power balance.”

Boruchowitz said Washington state’s bar council in public defense has proposed an amendment to existing bar standards for defenders and a new court rule on independence to the state Supreme Court.

“Both approaches — standards and court rules — have led to great positive change in our state,” Boruchowitz said. “Strong connections to the community, to the bar and support from the media can make a huge difference.”

Derwyn Bunton, chief legal officer at the Southern Poverty Law Center, said he believed the independence of public defenders could be influenced “in a real way” at the state level if the U.S. Department of Justice could sue for state Sixth Amendment violations.

“If they were enabled to actually enforce the Sixth Amendment across the country, I think you would magically see states doing better in how they structure and fund public defense,” Bunton said.