Guilt and Gideon: The Constitutional Failure of Rural Indigent Defense
Courthouse of Huntingdon County, PA, which serves a population of 43,359. (Huntingdon County and the public defense in Huntingdon County are not directly related to the events detailed in this article.) Photo courtesy of Jimmy Emerson on Flickr.
Rural Pennsylvania is home to 3.4 million people, spread across 48 counties. Go to the main towns in these counties, and the most distinctive landmark will most likely be the courthouse—red bricks and columns among public parks and empty storefronts. Thousands of defendants enter these courthouses each year to face charges for alleged crimes, from burglary to aggravated assault to DUI. In many of these counties, those accused who cannot afford an attorney, totaling over 120,000 statewide in 2023, are represented by a single public defender.
I talked to one such rural Pennsylvania public defender, who spoke under the condition of anonymity.
He recalled a specific case that he worked on in which the defendant, later charged with aggravated assault, had no memory of the alleged crime due to a medical emergency. The public defender, seeking to determine intent, petitioned the judge to approve an expert witness with medical experience. The county would have paid for the witness had the judge approved the request, but the petition was turned down multiple times for no identifiable reason.
In his district, as in many underfunded districts across the state and country, when a defense attorney wants to pursue an investigation and trial for a case, they are forced to go through the tedious process of petitioning a judge to get permission for an investigation and hiring expert witnesses. The prosecution and the police, on the other hand, have a predetermined budget available at their discretion. The public defender I spoke to put it simply: “The public defender has to get it all approved by the court, while the district attorney does not.”
Lack of funding compounds the issue—the majority of states require defense to be funded partially or entirely at the local level, putting rural areas with less tax revenue at a disadvantage. In fact, it wasn’t until December of 2023 that my home state of Pennsylvania began to fund indigent defense at the state level, approving $7.5 million of funding. The progress is minimal—much of the funding still comes from the local level, and Pennsylvania’s per-capita spending on public defense still stands at $10.25, well below the national average of $19.82.
Additionally, while rural America is home to 20 percent of Americans, only 2 percent of lawyers live in these areas, largely due to higher caseloads and lower salaries. 40 percent of American counties are “legal deserts,” with less than one lawyer per 1,000 citizens, making it virtually impossible for public defenders to handle everyday legal issues.
On top of typically being paid a flat fee and given a huge caseload, rural public defenders are often pressured by judges to move through cases quickly and efficiently. If a judge feels inconvenienced by an attorney’s repeated insistence on investigation and trial, that same judge may have authority over the attorney’s livelihood, through delegating less cases to them or even cutting their pay. As a result, many public defenders are pressured to “plead out their cases as quickly as possible.”
The defender added that even though his job was essentially full-time, it didn’t pay enough to support him, so he worked in a private practice as well. While the circumstances made it difficult to give all of the cases he was assigned the amount of time and attention they demanded, he did “everything he could to make time for [his defendants].”
Rural attorneys are not subpar defenders of justice; they are simply subjected to an impossible set of responsibilities. Further, judges cannot necessarily be blamed for being reluctant to approve witnesses and investigations. In Pennsylvania, district judges and Court of Common Pleas judges are selected through partisan elections. Constituents often do not look kindly upon taxpayer dollars being used for the defense of criminals, so judges, in order to retain their positions, have an obvious and legitimate motive to be parsimonious with spending on public defense.
The concerning state of the criminal justice in rural local offices does not stop at fairness in courts; it represents a breach of constitutionality. The Sixth and Fourteenth Amendments grant every American the right to a free trial, a principle enforced in the Supreme Court’s 1963 Gideon V. Wainwright decision. In Gideon, the right to fair counsel for all Americans, in all cases where incarceration is possible, was deemed a “fundamental right,” meaning that it should be “beyond the reach of the political process.”
Still, 34 out of 50 states do not have statewide standards protecting indigent defendants’ constitutional right to counsel. Even worse, only 14 states ensure that a defender will be present to provide counsel to defendants at the first court appearance, in which defendants are informed of the charges they face and the judge determines bail and court dates. In cases where a prosecutor is present in the first court appearance but a defender is not, indigent defendants must negotiate for themselves, making them susceptible to excessive bail amounts and harsh case outcomes.
The widespread failure of the right to counsel may have come about because it is a positive right: unlike negative rights like the First and Second Amendments, the Sixth Amendment cannot be upheld by simply not violating a right. It provides indigent defendants with a material claim, demanding financial support from a political body. While this reality is regarded as inconvenient by many states and counties, as a constitutional right, there cannot be negligence in its protection. Gideon holds that defense lawyers are “necessities, not luxuries.”
However neglected, an “objective standard of reasonableness” is required for counsel. The Supreme Court decision in Strickland v. Washington (1984) determined that a conviction cannot be valid if a defender does not provide “reasonably effective assistance given the totality of the circumstances.” Mirroring the experience of the Pennsylvanian defender, a lack of funding and discretion prevented the defense in Strickland from sufficient investigation. As the Legal Director of ACLU Pennsylvania, Witold Walczak, argued in a lawsuit filed against the state of Pennsylvania, the right to counsel “means more than a warm body with a law degree at your side; it requires an effective professional who has the time and resources to prepare a defense.”
Leaving the constitutional right to defense susceptible to the shortcomings of local governments destroys the guarantee of equal rights regardless of geographic, financial, or social situation. Rural defendants across the country cannot truly have access to a fair trial when counsel is overworked, underfunded, and often ultimately unable to comprehensively advocate for them.
When local governments fail time and time again to protect a constitutional right, state and federal governments have a responsibility to step in. The lack of oversight for the public defense system must be remedied through a centralized, federally-mandated public defense system subsidizing rural and low-income counties, especially those with no or very few lawyers.
States must create a regulatory commission that oversees regional public defense offices and manages trial-level administration, including assigning attorneys to defendants and distributing funding for investigation and witnesses. Furthermore, each state should be required to fund public defense to a certain degree, based on an assessment of the counties’ ability to cover expenses. This includes paying a sufficient number of defenders to cover the county’s caseload, paying defenders enough that they do not have to work privately, and funding investigations so that cases can be thoroughly assessed.
Currently, 24 states employ such a system, with a central administrative office and regional trial offices throughout the state, while all other states require more limited state oversight. Michigan, for example, centralized its public defense through the creation of the Michigan Indigent Defense Commission (MIDC) in 2013, changing the system from completely locally funded to 78 percent state-funded. From 2019 to 2021, the use of expert and investigative services by local defense counsel increased by 49 percent, giving defendants a better chance in plea deals and court. David Gemignani, chief public defender of a rural regional office, said that after the change, he no longer had to work as a private attorney, that the system is “better for the client,” and that he was able to be “more effective.” Similar improvements have been observed in other states that implemented the same systems, such as Colorado, New York, and Massachusetts.
The central need in the defense system is for the defense to be empowered to the level of the prosecution—to be assigned a manageable caseload and to be funded independently. Through a centralized system, the defense would no longer rely on judges for access to investigation, pay, and case assignments, preventing a conflict of interest that allows for judges to control how and to what extent a defendant can be represented. Availability of resources through the central office will make the unavoidable high caseloads in rural areas more manageable, improving efficiency and quality of defense.
A centralized system could also provide public defenders with a competitive yearly salary with state benefits, eliminating the need to work privately and allowing them to dedicate their full professional attention to indigent defendants. The office could also provide training and incentives for attorneys to work in rural areas, limiting the prevalence of “legal deserts.”
State governments can no longer remain complacent with the present state of indigent defense—rural Americans must be afforded the right to counsel granted to them first in 1791 and reinforced conclusively through Gideon. The shortcomings of local justice systems may be expensive or inconvenient for states to organize and rebuild, but without reform, there will be no escape from the current patterns of mass incarceration, wrongful conviction, and excessive sentencing. The systemic failures of underfunding and high caseloads keep countless people in jail away from their families and communities, effectively forgotten and voiceless. We must do better for these defendants by doing better for defenders—from one rural Pennsylvanian town to the rest of the country.
Abra Cotner (CC ‘29) is a staff writer from Danville, Pennsylvania. She studies political science and history and can be reached at alc2336@columbia.edu.