DUE PROCESS UNDER THE LAW is not the same for everyone. That was the message delivered in a public webinar this week, where public defenders spoke in support of legislation that they say would help even the scales of justice.
In the 1963 case Gideon v. Wainwright, the U.S. Supreme Court decided that everyone has the right to a defense attorney and due process under the law, even if they have no way to pay for one.
“When we look at what’s going on out there right now, and the failure to honor due process, it’s pretty scary,” said Loyola Law professor Sean Kennedy, who represents juveniles in Los Angeles. “I think that we should really invest in due process and make sure that when we are arresting and imprisoning people, that we get it right. That’s just a fundamental part of being in our democracy. We’re all seeing what happens right now on the federal level.”
Kennedy was referring to President Donald Trump’s administration questioning the need for due process in cases involving non-citizens.
At issue for the state’s public defenders are big caseloads, small budgets, and increasing numbers of felonies due to new “tough on crime” laws. The difference, public defenders say, is that the constitutionally required role of free public defense for indigent clients is not given the same respect, money or political support.
There’s a two-tiered system of justice when it comes to the court system. And what we usually mean by that is people with money get a different expectation of what justice means versus people without money.
Raj Sachdev, public defense advocate
The Wednesday webinar was hosted by the Wren Collective, a nonprofit of former public defenders who work on policy and research tools addressing the California legal system.
It included Alameda County Public Defender Brendon Woods, California Public Defenders Association Executive Director Kate Chatfield and Raj Jayadev from Silicon Valley De-Bug, a community-based justice organization based in San Jose.
Assemblymember Nick Schultz, D-Burbank, who is sponsoring a new bill that tries to remedy the issue, also spoke briefly.
According to data from the Office of the State Public Defender, there were 9,334 prosecutors in fiscal year 2021 to 2022 and just 4,613 public defense attorneys. California spends roughly 70 to 80% more on staff supporting prosecution than on public defense.
The flat fee trap
Counties in California are granted the sole authority to decide how to fund their public defense services. According to a study by the Wren Collective, the American Civil Liberties Union and the University of California, Berkeley School of Law, 24 counties have opted for sparsely regulated, flat-fee contracts with for-profit private attorneys to represent people accused of crimes.
“Let’s say I’m an attorney, I’ve been handed a felony case,” said Chatfield. “It’s like, ‘Okay, here’s $500 bucks for handling a felony case.’ I can file a motion. I can challenge the evidence. I can file writs. I can do this and get the $500. I can go out and interview witnesses. I can do all sorts of work, and I’ll get the $500 dollars. I can do nothing except make some appearances in court and get $500 dollars.”
Shultz’s bill, Assembly Bill 690, would prohibit a county or court from entering into flat fee contracts and ensure that all public defender contracts provide for an hourly rate. It would also ensure state funding to support public defenders’ offices. California does some state funding at the local level, said Chatfield, but it is often in the form of project grants covering a limited period.
“You can apply for this state grant to do this kind of work. But it’s just a drop in the bucket,” she said.
Chatfield told of an instance when she was at a public meeting in a rural county that had a very low tax base and where they struggled to fund public defenders, yet county leadership was very aware of the impact the problem was having on the community. According to Chatfield, one supervisor told her that without a public defense system, the whole system falls apart, there’s no justice, it’s just an illusion that there’s a rule of law.
Raj Sachdev said that in Alameda County, where there is no flat rate, clients will get an attorney from the public defender’s office that comes with an investigator, a mitigation expert and social workers.
“There’s a whole team effort,” said Sachdev. “But if you happen to have moved to a rural town, all those things aren’t accessible to you. And that’s the California reality that AB690 is confronting. There’s a two-tiered system of justice when it comes to the court system. And what we usually mean by that is people with money get a different expectation of what justice means versus people without money.”
Assembly bill 690 is opposed by the California District Attorneys Association, which argues that the bill will limit the number of cases each defense attorney can take on and result in a backlog of cases and a delay of justice.
“Typically, when caseloads are reduced, it expedites the process,” said Alameda County Public Defender Brendon Woods.
Part of the impetus for the bill was a 2023 report called the National Public Defense Workload Study that recommended standards for the number of cases that should be assigned to a public defense attorney. Sachdev said an overload of cases incentivizes court appointed attorneys to convince clients to accept a plea deal, rather than spend time and resources going to trial.
“The person and their loved ones have lived in regret ever since, thinking that that’s just the destiny of what it means to be Black or brown or a poor person facing the court system,” Sachdev said.
“If we took that study and applied it to my office,” said Woods. “It would say that I would need another 68 lawyers to come into compliance with the study. If you added 68 lawyers to my office, the District Attorney’s budget would still be $20 million more than mine.”
Impacts of ‘tough on crime’ laws
Another stress on the public defender system is that California communities have started to experience more immigration crackdowns, intensified encampment sweeps and an increase in felony charges under Proposition 36, which passed in November.
“What the law does is sort of return California back to a day when drug possession can lead to a prison sentence,” said Chatfield.
“Voters were told that people will get treatment for the drug possession,” she said. “Well, there’s no effing money for treatment, right? And the more you spend on jails and the punishment bureaucracy in prison, the less money you have for treatment. There aren’t any beds. I’m going to try to avoid getting into the weeds on all the problems with Prop 36 and the bullshit that was sold to the voters.”
A person can now face prison for up to three years if they have three or more drug possession crimes, including incidents that happened decades ago. It also allows the prosecutor to charge people with felonies if they have three or more theft crimes. She said Prop 36 brings us back to a time when we incarcerate our way away out of issues without solving real societal public health issues.
Chatfield compared the new climate to the criminalization of homelessness.
“We have a crisis in housing. We see people on our streets, day in, day out. They see people who are homeless, and they think my city is chaotic and there’s crime. Nope, crime rates have been dropping for a long time. So, they were told that they have behavioral health issues or substance use, and if we just incarcerate them, then somehow, they’re going to get well in a cell. That didn’t work during the ‘90s. It won’t work now. We will eventually see rising prison rates because of Prop 36, again, leading to less money for the solutions that we really need.”