Broken Defense, a seven-part series exposes the depths of the indigent defense crisis in western states

February 7, 2023


Gabrielle Caron


Pleading The Sixth


Pleading the Sixth: Last week, Lee Enterprises published a seven-part series exposing the indigent defense crisis in the West. With data finally showing what the 6AC has known for years and has found in nearly every study – thousands of unrepresented defendants going to jail without ever speaking to a lawyer – Lee Enterprises brings to light the Western states’ failure to fulfill their constitutional right to counsel obligations.  

Lee Enterprises published a seven-part series, Broken Defense, highlighting the various ways the Western states fail to fulfill their right to counsel obligations. In states like Arizona, California, Montana, Oregon, Texas, and Wyoming, data and personal stories show how the lack of state oversight, chronic underfunding, and undue government interference funnel thousands of indigent people into jail without ever speaking to a lawyer.    

6AC breaks down the main issues examined by Lee Enterprises: 

Actual denial of counsel: Lee Enterprises’ investigation exposed “America’s dirty little secret:” more than 136,000 misdemeanors cases across five states close each year without a lawyer ever being appointed. Data from Colorado, North Dakota, South Dakota, Utah, and Texas show what the 6AC has known for years, and has found in study after study – the widespread actual denial of counsel in misdemeanor cases. Part 4 of Broken Defense examines the data and the detrimental effects of denying counsel in misdemeanor cases.  

Lack of state oversight: While the above-mentioned five states provided data showing actual denial of counsel, California and Arizona could not provide any data to Lee Enterprises on the number of unrepresented defendants in misdemeanor cases. That is because some states, like California and Arizona, delegate all trial-level right to counsel obligations to the local level with no state oversight, leaving these states unaware of whether they are fulfilling their constitutional obligations. 

Constructive denial of counsel: Effective assistance of counsel is threatened in under-resourced systems where lawyers lack sufficient time and resources to provide competent representation. The series chronicles this constructive denial of counsel where chronic underfunding has resulted in the Great Resignation and excessive caseloads for the lawyers who remain. Part 2 highlights Montana’s struggle to find 63 additional lawyers to handle its caseload. Part 3 looks to Pima County, Arizona, where at least 23 lawyers managed caseloads above national standards. Defendants in Texas, Oregon and Idaho receive ineffective representation as a result of crushing caseloads. Part 5 dives deep into workload data from Arizona, Idaho, Kansas, New Mexico, North Dakota, Oklahoma, Oregon, Texas, Wyoming, Colorado, Montana, and Nevada. 

Lack of independence: Part 6 of Broken Defense shares the experience of California, Texas, Arizona, and Idaho lawyers working in systems that lack independence from judicial control. It tells the stories of lawyers feeling pressure to not file motions, advocate, or request investigators and experts – all to avoid displeasing the judge and risk losing future case appointments.  

Solutions: Although there is no national consensus on a specific federal fix, most advocates agree that a solution to the indigent defense crisis involves a combination of national, state, and local recommendations proposed in Part 7, including but not limited to: a significant increase in federal indigent defense funding to support the states, decriminalization, promulgating and enforcing stricter workload standards, establishing statewide systems, and creating public defender offices.  

Importantly, Lee Enterprises emphasizes that lawmakers must craft solutions that address the “far less understood and much more pervasive violation of civil liberties – the thousands of defendants every year accused of misdemeanors who are processed through the system, some of them serving jail time, without ever speaking with a defense attorney.” Without lawmakers “com[ing] to grips with this ‘dirty little secret’,” justice cannot be guaranteed in the United States criminal justice system.