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The Constitutional and Moral Imperative of Investing in Public Defense

On the 60th anniversary of the Supreme Court’s Gideon vs. Wainwright decision, Arnold Ventures announces $3.4 million in new public defense grants, underlying its commitment to see the full realization of the Sixth Amendment’s right to counsel.

Side view of U. S. Supreme Court building as sun rises.
(Tasos Katopodis/ Getty Images)

The Sixth Amendment of the Constitution states that all people facing criminal prosecutions have the right to the assistance of counsel. Sixty years ago, in Gideon vs. Wainwright, the Supreme Court ruled that the right to counsel is so critical to a fair trial that due process requires states to ensure every person charged with a felony who cannot afford counsel have a lawyer. In the years that followed the Court extended this fundamental right to whenever a person faces the possibility of incarceration (including misdemeanor charges).

The Supreme Court, however, left to the states the decision of how to implement and protect this fundamental right. The result has been a patchwork system of public defense that continues to face a dual crisis of under-resourcing and overwork. In many jurisdictions, public defense attorneys carry excessively high caseloads, which can diminish the effectiveness of the counsel that they can provide. In some states this can mean that public defense attorneys spend an average of as little as 7 minutes per case. In other places, people may wait months or even years for a lawyer to be assigned to their case or to get a date for their trial. Furthermore, currently as much as 40% of counties in the U.S. are classified as legal deserts,” where there is a severe shortage of attorneys. 


amount of counties in the U.S. that are classified as legal deserts

The implications of this crisis on individuals, families, and communities are dire. Without access to effective counsel, people can be detained before trial for long periods of time, face repeated and extended case delays, experience poor case outcomes, be pressured into accepting guilty pleas, and suffer extensive social, physical, and mental destabilization (including related to housing and employment). Moreover, since some of those in need of a public defense attorney come from disinvested and under-resourced communities, lack of access to courts and counsel can exacerbate racial and economic disparities. 

For these reasons, Arnold Ventures (AV) has made addressing the public defense crisis one of the cornerstones of its criminal justice reform efforts, investing a total of $9.4 million since 2021. We believe that a fair and racially equitable justice system requires a full realization of the Sixth Amendment’s right to counsel,” Rebecca Silber, director of criminal justice at AV, said. Specifically, we have chosen to prioritize three core pillars of public defense: access to a lawyer at all stages of the case, quality representation, and independence of counsel.” 

We believe that a fair and racially equitable justice system requires a full realization of the Sixth Amendment’s right to counsel.
Rebecca Silber director of criminal justice at Arnold Ventures

Coinciding with the 60th anniversary of the Gideon decision, AV has made several additional funding commitments to build the public defense evidence-base. For instance, AV is partnering with the Wren Collective as it examines the causes of inadequate public defense in five jurisdictions located in at least four states (Georgia, Ohio, Massachusetts, and Texas). In each of these areas, Wren will collect stakeholder input on needed improvements and develop recommendations for how these systems can be improved. 

60 years after the Supreme Court declared that every person facing a loss of liberty has a right to the effective assistance of counsel, lawyers across the country struggle to meet that standard,” said Jessica Brand, founder of the Wren Collective. It is not because they do not want to fight for their clients, but because our system of government systemically underfunds indigent defenders. They are overworked and underpaid while performing one of the most grueling jobs that exists. Wren is a team of former public defenders, and we are grateful to have the opportunity to work across the country to support those who are performing such critical activities.” 

Our system of government systemically underfunds indigent defenders. They are overworked and underpaid while performing one of the most grueling jobs that exists.
Jessica Brand founder of the Wren Collective

AV is also partnering with the National Association of Criminal Defense Lawyers (NACDL) and RTI International, on a multifaceted project in Virginia to study and demonstrate the feasibility and benefits of providing early access to counsel. The project will conduct a national landscape analysis, utilize a multi-jurisdiction randomized-control trial to examine the costs, benefits, and impact of providing continuous access to counsel beginning at initial appearance, and conduct a community campaign to inform and elevate the research.

NACDL and our RTI partners appreciate Arnold Ventures’ support as we examine the qualitative and quantitative costs and benefits of providing defense counsel at first appearance,” said NACDL Executive Director Lisa Wayne. We look forward, along with our Virginia Pretrial Justice Coalition colleagues, to amplifying voices from impacted communities as we build a foundation for a sustained commitment to early access to counsel in the Commonwealth and beyond.”

Lastly, AV is providing operational support for Zealous, a national advocacy and education organization, so that they can continue their work of supporting public defenders expand their advocacy beyond the courtroom. This includes designing and implementing location-specific trainings, curriculum, and toolkits on media, storytelling, communications, and policy advocacy, as well as supporting public defenders and their offices to develop systems to launch compelling storytelling projects and strategic campaigns, and build critical relationships with journalists, media outlets, and other key messengers.

Defenders and defender offices have a wealth of systemic knowledge and are a largely untapped resource when it comes to understanding and addressing the everyday injustices that impact their work and the communities they represent,” Alexzandria Poole, director of defender initiatives at Zealous, said. Training and supporting defenders, their offices, and aspiring defenders on a range of advocacy tools, and using these tools to optimize defender offices for strategic advocacy outside of the courtroom, would not be possible without the continuing support of Arnold Ventures.” 

Over the past several years, there has been an increasing understanding in some jurisdictions that the public defense system is in need of an overhaul. States like Michigan, Utah, Nevada, and Idaho have begun to investigate or implement public defense reforms. However immense challenges remain in these and many other jurisdictions. With these new grants, alongside additional ongoing public defense support, AV aims to provide policymakers, advocates, and other stakeholders the evidence and resources needed to ensure that the country can one day fulfil its constitutional and moral obligation to provide all people adequate representation.