The Public Defender Floor

The problem

In 1963 the Supreme Court held in Gideon v. Wainwright that a person accused of a crime who cannot afford a lawyer must be given one. It did not say who would pay, and for sixty years the answer has been: whoever pays least. Indigent defence is funded by counties in some states, by the state in others, by a mixture in most, and in every arrangement it is the line that gets cut first, because the people it serves do not vote in large numbers and the people who cut it are not the ones who will need it.

The disparity is measurable wherever anyone has measured it. In California's 2022–23 fiscal year, counties spent about $2.2 billion on district attorneys' offices and just over $1.2 billion on public defence; the state then added more than $1 billion for prosecution and $150 million in grants for defenders. Studies in other states find prosecution funded at two to four times the defence. Public defenders' workloads rose 47 percent on average between 2013 and 2022 by one national study, while the time the average case needs rose 70 percent. A 2023 study by RAND and the American Bar Association, the first national caseload standard in fifty years, found that a defender can responsibly handle about 59 serious felony cases a year; many carry two or three times that, and some carry hundreds.

The result is not a scandal in any one case. It is a system in which the defence cannot investigate, cannot interview witnesses, cannot file the motions it would file if it had the hours, and advises a client to plead because there is no time to do anything else. About 95 percent of convictions are pleas. Some of those defendants were guilty. Nobody knows how many were not, because the machinery that would have found out was never funded.

№ 095 required a hearing with counsel before detention. This proposal is the counsel.

The proposal

The Public Defender Floor: in every jurisdiction that takes federal justice money, funding for indigent defence may not fall below 75 percent of funding for prosecution, counted the same way. Defender caseloads are capped at the 2023 national standards. Indigent defence is administered by an independent commission, not by the courts or the county executive. A federal matching fund pays a third of the cost of reaching the floor for ten years.

How it would work

1. The floor. Each state and county reports, annually, what it spends on prosecution and what it spends on indigent defence, counted by one federal definition that includes salaries, investigators, experts, and the share of court staff. Defence spending may not fall below 75 percent of prosecution spending. The ratio is not 100 percent because the prosecution carries functions the defence does not, screening, victim services, the burden of proof; it is not 50 percent because that is roughly where the country is now, and it is not working.

1. The caseload cap. No defender may be assigned cases beyond the 2023 RAND-ABA standards, weighted by case type. A defender at the cap may decline the next assignment, and the court must find counsel elsewhere, at the jurisdiction's expense. A jurisdiction that cannot staff to the cap is a jurisdiction prosecuting more cases than it can fairly try.

1. The commission. Indigent defence is run by an independent state commission, with members appointed by the bar, the defenders and the public, not by judges before whom the defenders appear or by executives who fund the prosecution. Several states have such commissions; the Floor makes them universal. A defender whose budget is set by the judge who will rule on her motions is not independent, and the client knows it.

1. The match. For ten years, the federal government pays one-third of the cost of raising a jurisdiction's defence spending to the floor, through the Justice Department, on the same grant machinery as № 056 and № 058. The match ends when the floor is reached and stays reached.

1. The count. Every jurisdiction's ratio, caseloads and outcomes, trial rates, plea rates, dismissals, are published annually on one page, beside the clearance rate of № 056 and the sentencing table of № 061. A county whose defenders carry 200 felonies each will be visible.

1. The federal courts. The federal defender system, which is better funded than most states' and was cut in 2023, is brought under the same floor against the United States Attorneys' budgets.

The numbers

The gap. National spending on indigent defence is on the order of $5 billion a year; on prosecution, at least twice that. Reaching a 75 percent floor means roughly $3 billion a year in additional defence spending nationally, of which the federal match covers a third for a decade.

The caseloads. The 2023 standards imply that many jurisdictions need to double their defender staff or halve their caseloads. The cap forces the choice into the open.

What the defence prevents. Wrongful convictions are not counted because they are not known; the National Registry of Exonerations has recorded more than 3,500 since 1989, which is the fraction that was found. Pretrial detention, over-charging, and pleas to crimes not committed are the ordinary product of a defence that cannot function, and their cost, in prison beds and ruined lives, is far larger than $3 billion.

The match. About $1 billion a year federally for ten years, a fraction of the Justice Department's grant budget.

The honest objections

"Parity is arbitrary; the defence does not need what the prosecution needs." True, which is why the floor is 75 percent and not 100. The defence does not screen cases or run victim services. It does investigate, hire experts, file motions and try cases, and at half the prosecution's budget it does none of those adequately. The number is a judgment; the direction is not.

"Counties cannot afford it." Counties are choosing, today, to fund one side of every trial they conduct at twice the other; the Floor asks them to fund the trial they chose to bring. The federal match pays a third of the cost for a decade, and a county that cannot reach the floor may prosecute fewer cases, which is the alternative the Constitution actually permits.

"Caseload caps will let defenders refuse cases and leave defendants without counsel." A defender at the cap who declines a case leaves the court to find counsel, at the jurisdiction's expense, which is the pressure that produces the funding. The alternative, a defender with 300 cases who accepts the 301st, leaves the defendant with counsel in name only, which is what the Supreme Court has held is no counsel at all.

"Independent commissions are unaccountable." They are accountable to the bar, the public and the published outcomes in item 5, and not to the judge or the executive whose interest is in the defence losing quietly. A prosecutor answers to voters; a defender should not answer to the prosecutor's funder.

"The real fix is fewer prosecutions, not more defenders." Both, and the Floor produces the first through the second: a jurisdiction that must fund the defence of every case it brings will bring fewer marginal ones. That is the adversarial system working as designed, for the first time in many counties.

Sources

• Gideon v. Wainwright, 372 U.S. 335 (1963)
• California Office of the State Public Defender, Unequal Scales: California's Investment Disparity Between Prosecution and Public Defense (2025)
• RAND Corporation, American Bar Association, National Association for Public Defense and Crime and Justice Institute, National Public Defense Workload Study (2023)
• Vera Institute of Justice, Public Defenders Are Underfunded. Justice Pays the Price; Sixth Amendment Center, state reports on indigent defence systems
• Bureau of Justice Statistics, State and Local Government Expenditures on Indigent Defense; National Registry of Exonerations, annual reports
• Proposals № 056 (The Clearance Rate); № 058 (The Use-of-Force Register); № 061 (The Sentencing Table); № 095 (The Bail Table)