Under-funding Public Defenders Harms Maryland’s Justice System

Anyone who is facing criminal charges, has a Constitutional right to legal representation. However, having a lawyer who has time to learn the facts of the case and provide an adequate defense is becoming less of a right and more of a privilege of the well-off.

When Marylanders who cannot afford costly lawyers’ fees have to go to court, a public defender can represent them. All over the state, public defenders are taking on hundreds more cases than legal experts say they can manage while still providing effective legal representation. There is a widespread shortage of public defenders in Maryland and those who are there have unmanageable caseloads that now far exceed the standards that the American Bar Association recommends.

The primary cause is insufficient state funding for the Maryland Office of the Public Defender. There are currently 380 public defenders in Maryland’s circuit and district courts, and the Department of Legislative Services estimates that the state would need to hire another 150 lawyers in order to bring caseloads in line with standards. When caseloads are high, public defenders are more likely to meet their clients for the very first time right before they step into the court room. This gives no time for defendants to be briefed on legal procedure, share their account, or learn about their options. It also gives little time for the public defender to strategize how best to present the case.

In Maryland’s circuit courts, which handle serious criminal cases, the caseload standards vary depending on the location. Maryland Public Defender Paul DeWolfe, who leads the Office of the Public Defender, wrote in his 2015 annual report that across Maryland “caseloads in district and circuit courts are prohibitively high.” The caseload standards, while a good benchmark in figuring out how much a public defender can handle, do not fully measure the extent to which the Office of the Public Defender is understaffed. The Office of the Public Defender also needs more paralegals, secretaries and other support staff that lawyers rely on. Many of the responsibilities that typically fall on support staff like typing up motions, researching cases, and filing documents are now piled onto the desks of the lawyers. Yet the public defenders still have to represent clients during pretrial hearings, bench warrant hearings, and a variety of other circumstances that divide up the lawyer’s limited time. This makes it difficult for public defenders to provide quality and effective service under short time frames and tight circumstances.

Those who seek the help of a public defender rather than hiring a private lawyer are typically among the lowest-income Marylanders. African Americans are twice as likely as white Marylanders to be in the poorest 20 percent in the state, this means a shortage of public defenders disproportionately harms black Marylanders. This is exacerbated by the fact that people of color are more likely to be charged with a crime. For example, despite there being no significant difference in the rate of drug use amongst racial groups, drug arrest rates are far higher for blacks than for whites. On average, blacks were 2.9 times more likely than whites to be arrested for marijuana possession in Maryland between 2001 and 2010.

Properly investing in the Office of the Public Defender should be one of Maryland’s budget priorities. However, hiring more staff is not the only option for addressing the problem. Other states have used the strategy of decriminalizing low-level criminal and traffic infractions, such as trespassing or driving without a license, in order to reduce the number of court cases and take some of the burden off of public defenders. There has already been a small positive effect of this type of strategy since Maryland decriminalized possession of small amounts of marijuana in 2013. Removing the jail penalty for additional crimes that have little risk to public safety is how Public Defender DeWolfe believes Maryland can lower the burden on the Office of the Public Defender and better serve the cause of justice. It remains to be seen if 2016’s Justice Reinvestment Act, which reduced jail sentences for a number of minor offenses in the state, will help ease the burden on the public defender’s office.

When Marylanders are not able to seek proper legal representation they are unable to receive the due process they deserve, and the lack of funding for the Office of the Public Defender is the root of issue. Proper public investment in our legal system is one way of making sure that every Marylander receives equal justice.