Underfunding Public Defense Fuels Mass Incarceration

Art by Leo Hendrixx

A society doesn’t end up with a massive prison industrial complex if that society isn’t on some level, invested in the punitive beliefs that uphold it. Public defense is notoriously underfunded and it’s not a phenomenon. It is the natural result of America’s marriage to punishment and mass incarceration.

Punishment permeates every aspect of the criminal system because it is the lens by which we’re taught to view “justice.” The entire experience of having an open criminal case is designed to be painful and laborious all throughout, just in case you manage to evade incarceration or criminal conviction.

Our clients are meant to feel the weight of the criminal system on their necks from the moment they’re first arrested and forced to wait hours, sometimes days, before they see a judge; when we then plead with judges for their freedom; when they get sent to Rikers simply because they couldn’t afford bail set by the same judge who appointed them a public defender because they knew they couldn’t afford a lawyer; when they have to show up for court at the threat of a warrant for unnecessary appearances that were always going to be adjourned; when they lose their jobs just for having gotten arrested; when they can’t get a job because they have an open case; when they lose their homes to automatic orders of protection no one wanted; when they spend years sitting in Rikers waiting on a trial that even if they win and get to walk free, they’ve already done the time and suffered all the lasting effects.

People suffer the entire time they have a criminal case whether they beat it or not—because they’re meant to. They’re punished just for having made contact with the criminal system because the underlying belief is that they deserve it—they’re bad, that’s why they’re there—and the legal representation they’re afforded is not divorced from that deliberate effort to punish them.

The vast majority of people being churned through the criminal system in America are poor Black and brown people who are represented by public defenders  People know that public defenders represent people who “cannot afford legal representation,” but they don’t know just how poor you really have to be to qualify for a public defender. People represented by public defenders live well beneath the poverty line and often have little to no sources of income or financial support of any kind. This is the bulk of who our society polices and incarcerates.

Despite being the only constitutionally mandated attorneys, public defenders are notoriously and deliberately underfunded by the very government we must oppose. We’re known for being “overworked and underpaid” as we’re left to fight impossibly high caseloads with half the resources our adversaries in the prosecutors’ offices have, to the inevitable detriment of the people we represent.

Whereas a private defense attorney may have a few cases to focus their attention on, the average public defender in NYC has at least 70 cases at any given time, and that number was once much higher. NYC’s yearly caseload cap for public defenders is a whopping 400 cases. And for public defenders across the country, the yearly caseload cap can still be as high as 590 cases. It’s simply not possible to have that many cases and give each equal or even adequate attention. It’s not even possible to stay in regular communication with that many people, so we’re constantly triaging our workload at the expense of the lawyer-client relationship and thus, the representation—because it’s harder to trust the advice of a lawyer you presume doesn’t care because you haven’t heard from them. And if it’s not possible to talk to each client, there’s certainly no way to investigate, do hearings, and take each of their cases to trial.

This system guarantees that people will fall through the cracks; that many will have to take pleas; that people who may have otherwise went to trial, cannot; and that our clients suffer while mass incarceration thrives. And that’s exactly the point.

“The system isn’t broken; it’s working as intended.” If you’ve been to a single protest centered around criminal justice, you’ve seen or heard some variation of that quote so many times it’s probably lost its punch. What was originally a damning revelation or at least, a controversial critique, is now a popular opinion.

Likewise, there is no shortage of news, media, and horror stories about the cash bail system, about people dying in jails waiting on their trial, prison labor, people’s rights being violated, wrongful incarceration, prison violence, police brutality, public defenders drowning in their caseloads, or just about any other negative truth about the criminal system. 

If we’re not only aware that the criminal system is unjust by design, but also exactly which components of the system produce the injustice, how then, does the system and all those components continue not only to survive, but to expand in the wake of a country that so loudly proclaims to be outraged by it?

For the same reasons that in 2020, New York City, a democratic stronghold widely seen as progressive, passed historic bail reform in January that dropped the pretrial detention by 40%, and then rolled it back mere months later in the middle of a global pandemic, causing pretrial detention to increase by 70%. For the same reasons NYPD’s $10.4 billion budget was increased by $200 million while people erroneously continue to believe NYC is experiencing a crime spike because NYPD’s been defunded.  For the same reasons that there was a protest against police brutality every day in every borough in NYC in the summer of 2020, but NYC still elected a cop. We have unwittingly bought into fear mongering and copaganda that makes the very injustice we claim to oppose, possible.

In the simplest terms, people are okay with bad things happening to those we believe are bad people. Especially if they’re told it’s necessary to protect good people. And if people are okay with it, it can continue. That’s the working principle at the heart of why so many widely known problems with the criminal system, like the underfunding of public defenders, can persist in a society seemingly so aware and outraged.

It’s one thing to recognize that the system is punitive by design, but we must reexamine our own understandings and unconscious beliefs about crime, punishment, and criminality to stop reinforcing the system we call unjust.

Once people are perceived as criminals, it becomes justification for any harm done to them.

That’s why everywhere we’re inundated with countless shows, movies, and mainstream images reinforcing the idea that there are just bad people who do bad things.

It unconsciously shapes our understanding of what police do, what kind of people police harm or arrest, what crime is, and who a criminal is. It supplants this idea that police and prosecutors are the good guys who fight crime and they must do whatever they can to stop these people—even if it violates their rights. That’s how people can consume so many shows and movies depicting all manner of police violence, coerced confessions, and blatant violations of the law and people’s rights, and not only watch faithfully, but root for the police and the prosecutors.

Through the construction of criminality, fear mongering, and copaganda, we have been led to believe that there are no alternatives to incarceration and that without cash bail, without prisons, without police, we’d live in a state of constant peril because the people in our criminal system are just innately bad people who neither them or society could be better helped another way.

That drives people’s faith in police and the criminal system, despite the reality that most crime is nonviolent, that systemic inequality does cause violence, and that most people in the criminal system are not evil—they’re poor.

We then become so invested in the lies we’ve been fed about the “justice system,” that despite all the evil we know it perpetuates, that we leave our homes to protest against, many will still insist on how necessary it is and that these bad people be punished. They certainly won’t care that the lawyers representing those bad people are underfunded, overworked and unable to provide them with adequate representation, because that seems fair.

We must reckon with how our own beliefs reinforce this system because if we remain committed to punishment, we will continue to legitimize a system that is too.