Title

The Price of Misdemeanor Representation

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.

Abstract

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forty years after Gideon, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that state and local legislators face political pressures to balance budgets and that indigent defense systems therefore must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level misdemeanor cases, thereby freeing up resources for more effective representation of those charged with more serious crimes. States can achieve this result without violating constitutional requirements by: (1) amending overbroad appointment statutes, (2) reducing penalties for certain minor offenses, (3) amending probation statutes, and (4) requiring judges and prosecutors to identify at the beginning of the proceedings those misdemeanor cases that are the most serious. While it may appear that denying counsel to some misdemeanor defendants will significantly prejudice their interests, empirical evidence suggests that counsel in misdemeanor cases do not typically provide meaningful benefits to many of their clients. Rather than spending resources on low-value representation, states should use those resources to reduce caseloads of indigent defenders, thereby increasing the quality of representation in felony and serious misdemeanor cases. To ensure that result, states should - indeed must - couple reforms designed to reduce counsel appointment in misdemeanor cases with enforceable, numerical limits on per-attorney caseloads.