Public Defenders

Would Decriminalizing Minor Offenses Help Indigent Defense Crisis? ABA Committee Weighs In


The “perpetual crisis in indigent defense” could be lessened by moving minor infractions—including minor drug offenses—out of the criminal justice system, according to a new report by an ABA committee and a national group of criminal defense lawyers.

The report concludes that the criminal justice system is flooded with petty infractions that could be dealt with through two front-end reforms: reclassification and diversion. In reclassification, criminal statutes are changed so that minor illegal acts are changed from criminal offenses to civil infractions that carry a fine. In diversion programs, individuals charged with low-level criminal offenses can have the charges dismissed if they perform community service, enter substance abuse treatment or follow other requirements.

The report (PDF) was released in advance of the 50th anniversary of Gideon v. Wainwright, the March 1963 U.S. Supreme Court decision finding a Sixth Amendment right to counsel. Titled “National Indigent Defense Reform: The Solution Is Multifaceted,” the report was released Tuesday by the ABA Standing Committee on Legal Aid and Indigent Defendants (known as SCLAID) and the National Association of Criminal Defense Lawyers.

The recommendations are derived from a focus group of 18 experts convened to explore ways to reduce pressure on indigent defense through new ideas, rather than new money. “There is no doubt that money—lots of it—wisely disbursed and properly used among the states, would go a long way toward solving the problem,” according to a foreword to the report. “But no such largesse is imminent.”

One of the panel experts was Vanita Gupta, deputy legal director of the American Civil Liberties Union. Citing her views, the report offers “a fairly easy front-end reform”—decriminalizing nonviolent drug possession, or classifying such offenses as misdemeanors or civil infractions. Southern states that are traditionally viewed as conservative have been at the forefront of such reforms. A 2003 law in Texas, for example, mandated probation for low-level possession of many drugs, saving the state an estimated $51 million between 2003 and 2005.

“An evidence-based, ‘smart on crime’ approach will not take a toll on public safety,” the report says, referring to Gupta’s views. “States like New York, which depopulated its prisons by 20 percent from 1999 to 2009, and Texas, which has stabilized its prison population growth since 2007, are presently experiencing the lowest state crime rates in decades.”

Attorney General Eric Holder commented on indigent defense problems in a 2012 National Summit on Indigent Defense sponsored by SCLAID. “Across the country, public defender offices and other indigent defense providers are underfunded and understaffed,” Holder said. “Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads, and inadequate oversight. … The basic rights guaranteed under Gideon have yet to be fully realized.”

The report also discussed:

• Creating indigent defense standards, commissions and training programs.

• Improved collaboration and cooperation within and outside the criminal justice system.

The report was funded by the U.S. Department of Justice’s Bureau of Justice Assistance and prepared by Indiana University law professor Joel Schumm. Other focus group members included Chief Justice Michael Cherry of the Nevada Supreme Court, Texas State Sen. Rodney Ellis, and former Indiana University law school dean Norman Lefstein.

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