When Gideon v. Wainwright was decided 50 years ago most observers thought that the issue of representation for the poor in criminal cases was settled: the poor got a lawyer. Regrettably far too many public defender and appointed counsel systems are so underfunded that the caseloads are simply unacceptable. Obtaining adequate funding and maintaining reasonable caseloads is the major challenge facing many courts throughout the nation. One “solution” is to acknowledge that indigent defense counsel can refuse appointment when the caseload becomes constitutionally intolerable. Recently the Florida Supreme Court ruled that the Miami-Dade County public defender’s office could withdraw from a large chunk of felony cases because of excessive workloads. Describing what it called a “damning indictment” of representation for poor criminal defendants, the court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion (PDF) that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

“Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,’’ Quince wrote in the opinion.”Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in ’triage’ with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.” A dissenting opinion asserted the Miami-Dade public defender’s office had not proved harm to defendants.