In summary
California is one of just two states that provides no money for the basic defense of poor people accused of crimes.
A new commission made up of legislators, public defenders, academics and advocates seeks to push California — one of just two states that don’t pay for basic public defense — to begin providing resources and enforcing minimum standards for county public defender systems.
The California Independent Commission on Public Defense includes three assemblymembers and two senators — among them Jesse Arreguín and Nick Schultz, chairs of the Senate and Assembly Public Safety Committees — as well as chief public defenders from several counties, retired judges, the directors of criminal justice nonprofits, and the heads of organizations representing thousands of defense attorneys in the state.
“We have discussed the problem of our public defense system for years,” said Schultz, a Democrat from Burbank and former prosecutor who has sponsored legislation to improve public defense.
The goal is to “move past discussion and study, and come up with an actionable road map of what we need to do to really build out the robust public defense infrastructure that Californians are rightfully entitled to,” he said.
The commissioners plan to develop a five-year plan to phase in state funding, along with enforceable standards like caseload limits and access to defense investigators.
A CalMatters investigation last year found that criminal defendants across the state are routinely convicted without anyone investigating the charges against them, significantly increasing the likelihood of wrongful convictions. Many California counties do not employ a single defense investigator who can interview witnesses, review police reports, visit crime scenes and retrieve video surveillance footage. CalMatters also found that lawyers in some rural counties are handling caseloads that far exceed even the most permissive standards, making them less likely than other defense attorneys to challenge the prosecution’s evidence in legal motions and take their cases to trial.
But the state has resisted stepping in. After a proposed bill that would have created an official state commission to address the issue was abandoned, two advocacy groups, the Wren Collective and UC Berkeley’s Criminal Law and Justice Center, decided to form an independent commission and began assembling participants who could develop and act on reforms. These types of commissions, which have facilitated significant improvements in other states’ public defender systems, are usually established by the governor.
“It became clear that this was an issue that was not a high priority for Sacramento, especially during a budget crisis,” said Chesa Boudin, the Berkeley center’s founding director and a former San Francisco district attorney. It also became clear, Boudin said, that “there was a tremendous gap between what experts understood to be the crisis and the public perception of California government as a kind of progressive leader in the country.”
In the decades since the U.S. Supreme Court established the right to an attorney in state court criminal proceedings, California has saddled its counties with the responsibility of providing lawyers to poor people accused of crimes. Many of those counties have opted for the cheapest path: paying private lawyers and firms a flat fee to represent indigent defendants, regardless of how many cases they handle or how much time they spend on each case.
“You’ve got some offices that have an incredibly high caliber of representation that they can provide, and you have other offices that are doing these flat-fee contracts where the quality has been documented to be pretty bad,” said Eve Brensike Primus, a law professor at the University of Michigan.
Primus is the only member of the new commission from outside of California. She was asked to join because of her extensive research and writing about the structure of indigent defense.
An indigent defense commission in Michigan, which was formed by the legislature in 2013, has led to significant reforms and a substantial influx in state funding.
The California commission’s work, Primus said, can serve “as a catalyst for political actors to do the right thing and start to fund and improve indigent defense delivery, or as fodder for lawsuits that then can try to get the judiciary to push the political actors to do what is necessary to provide for effective representation.”
The commission is scheduled to hold its first in-person meeting, which will be open to the public, in Berkeley in October, with additional meetings planned for Los Angeles, the Central Valley and Northern California over the next 12 months. Commissioners say they will work in subcommittees in-between these quarterly sessions to develop a concrete fiscal plan for the state, draft legislative language, and establish minimum standards for how counties should structure their public defender offices, compensate their attorneys, provide access to experts, and report on their work.
Any recommendations would then need to be approved by the Legislature.
