The states of indigent defense, part three: Florida and Georgia

Assistant Public Defender Melisa McNeill, with Marjory Stoneman Douglas High School shooter Nikolas Cruz (Photo by Amy Beth Bennett-Pool/Getty Images)

Note: This is the third part of my series on state indigent defense systems. Here are the other installments: Introduction. Part one. Part two.

As I mentioned in my previous post, the indigent defense systems in Florida and Georgia are dire enough to merit a separate installment.

Both states also structure their systems in a way that makes the heads of regional public defender offices reluctant to speak on the record. In Georgia, the chief public defender, who controls much of the state funding for indigent defense, is appointed by and reports to the governor. So as you might guess, chief public defenders don’t want to risk alienating the administration by criticizing the system publicly.

In Florida, chief public defenders are elected. I’ll discuss the benefits and drawbacks of that system in a moment, but one thing it does do is make them political actors, which means that when they do speak publicly they tend to be measured.

But there were current and/or former chief defenders. from both states willing to speak to me on background.


Approximate per capita spending on indigent defense: $13.31

Ratio of DA budget to public defense budget: 2.38:1

Ratio of state-level police/corrections spending to state-level indigent defense spending: 53:1

Florida gave us Gideon v. Wainwright, the landmark Supreme Court case that established the Sixth Amendment right to counsel for indigent defendants. And the state hasn’t exactly covered itself in glory since.

Florida funds almost all of its public defense at the state level, though it leaves the structure and delivery up to individual judicial circuits.

Florida is also one of just two states in which district public defenders are elected, rather than appointed (the other is Tennessee, along with the city of San Francisco and parts of Nebraska).

Intuitively, this seems like a bad idea, given general public attitudes about crime, punishment, and, well, indigent defense. There have been at least a couple times in which candidates have run on promises to be less skeptical of police, to seek funding cuts, or to be more aggressive about collecting fees from indigent clients.

A fascinating 2018 investigation by the Palm Beach Post looked how the approach to the job taken by an elected Republican chief public defender in Martin County — who was friendly with prosecutors — differed from a Democratic elected public defender in a neighboring district who took a more confrontational approach.

The two newspapers collected more than 800 cases handled by eight assistant public defenders — four from each county — from 2014 through 2016. The analysis revealed that drug offenders in Martin County were nine times more likely to be sent to prison when they scored less than 44 points — the level at which prison is recommended — on their sentencing scoresheets.

The newspapers also added felony drug defendants who scored 44 points or more to the analysis, creating an index that measures how sentencing in the two counties deviates from the minimums recommended under state law.

That index shows that Martin defendants are far more likely to get extremely harsh sentences — at least 60 percent higher than the minimum, while Palm Beach County defendants are far more likely to be treated with leniency — receiving sentences at least 60 percent below the minimum.

Of the 223 defendants in the index, 59 received extremely harsh sentences. Fifty were from Martin County.

On the flip side, 38 defendants received extremely lenient sentences. Thirty-two were from Palm Beach County.

That said, a couple of academic studies on jurisdictions where public defenders are elected found that these systems generally produce similar outcomes, and scenarios like the one above are relatively rare. On the Public Defenseless podcast, Rex Dimming, chief public defender for the state’s 10th Judicial District, told host Hunter Parnell that even on the few occasions in which candidates have run on promises to recover more fees or to be less scrutinous of police, those candidates either lost or, if they won, tended to act as any other chief defender would once they took office.

Dimming and the current and former chief defenders I spoke to for this post also argued that electing the position offers some distinct advantages. First and foremost, they aren’t beholden to a politically appointed state defender or public defense board (see Georgia below). So they can act in the interests of their clients without fear of political reprisals. One chief defender pointed out that some elected chief defenders in the state have larger constituencies than many state representatives.. So with the endorsement of voters, they carry more clout than appointed chief defenders when lobbying the legislature.

But Florida definitely has its problems. Search newspaper archives, and you’ll find that every few years, one or more major papers in the state have run editorials about a critical lack of resources for public defenders. It a familiar story that goes back decades.

— A 1987 editorial in the Palm Beach Post warned that public defenders in that county were struggling with an astonishing 700 felony cases per year.

— In 1990, the public defender in Pinellas County asked a court to force the county to hire more public defenders. At the time, attorneys in the office were handling 400 felony cases per year.

— A 1993 report found that the state’s 837 public defenders were responsible for over 540,000 cases per year — or an average of 645 per attorney. Over the previous decade the caseload had tripled. Meanwhile the state budget for indigent defense had been slashed by 26 percent.

— In 2001, the Tampa Tribune reported a mass exodus from public defender offices across the state due to heavy workloads and low pay. Some offices were replacing half or more of their staffs every few years, guaranteeing that most indigent defendants would be perpetually represented by inexperienced attorneys.

— A 2008 editorial by the St. Petersburg Times pointed out that the average felony caseload for public defenders in that city had grown from 137 in the 1970s to well over 300.

Florida saw a watershed moment in 2012, when assistant public defenders in Miami-Dade county asked the state’s courts to allow them to refuse clients if they didn’t feel they could provide adequate and ethical representation. The defendants who had been refused would be contracted out to private attorneys.

Contracting those cases out would be much more expensive, so the state fought the move. Florida officials argued that under the Constitution, indigent defendants are entitled only to a bare minimum defense — as opposed to a good one. They also argued that the proper way to remedy inadequate defense work was for the defendant to ask the courts to intervene after they’d been convicted due to deficient counsel — not to try to prevent it in the first place. Given that a defendant would need a good lawyer mount that sort of challenge, you can see the problem, here.

By the time that case was argued, Brevard County public defenders were averaging over 433 felonies per year. Its misdemeanor attorneys were handling over 800. In Miami-Dade County, the average felony caseload had topped 500, and the average misdemeanor caseload was over 2,200.

In 2013, the Florida Supreme Court ruled in favor of the state’s public defenders — they could refuse to represent indigent clients if they felt they couldn’t provide an adequate defense. “[W]e are struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants,” the majority wrote. They pointed to one judicial district where individual public defenders often had more than 50 trials scheduled per week. “Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment,” the court wrote.

That ruling was a win for public defenders, but it didn’t really solve the funding problem. In 2019, the chief public defender for Pinellas and Pasco counties said that due to funding shortages, he’d have to start refusing new misdemeanor cases and close his office for five days each month. His budget had been cut 12 percent since 2007, even as felony charges soared. His line defenders were handling more than five times the 1973 ABA recommended maximum caseload. The chief public defenders in Miami-Dade and Broward counties said they, too, may have to begin refusing cases.

When asked for comment on the crisis, State Sen. Victor Crist, who at the time chaired the committee that funds public defense, told the Tampa Bay Times that the attorneys were “grandstanding.”

All of that happened just before the pandemic. COVID then poured gas on the long-smoldering fire. Dimming told Parnell that prior to the pandemic, most public defenders had two to three times the caseloads under the old ABA recommendations. Most now carry five or six times more. Post-pandemic, for example, the public defender office state’s 10th Judicial Circuit — three counties south of Orlando — lost 13 of its 60 full-time lawyers. It also lost support staff, including three mental health counselors. The remaining attorneys are now averaging more than 200 felony cases per year.

DeSantis and the state legislature then cut the public defense budget, while diverting COVID relief funding to courts and prosecutors.

The biggest problem now in Florida is a shortage of qualified applicants for available positions. That problem is related to, but slightly different than lack of funding.

The starting salary for an assistant public defender is $68,000, a figure that’s set by legislature. The average rent for a one-bedroom apartment in Miami right now is about $2,500. Consequently, there are currently 260 vacant public defender positions in the state. In other words, the funding for these positions is there, but the salaries are too low to attract qualified applicants.

In January 2023, Miami-Dade County Public Defender Carlos J. Martinez testified before the Florida House of Representatives’ criminal justice subcommittee. Here’s an excerpt.

“We have a serious crisis in the state of Florida. It used to be that we would only say, ‘well, it’s happening in Miami. It’s happening in Orlando. It’s happening in Tampa. Talking to my brethren public defenders, these issues are happening in large (and) small circuits. It’s happening in rural counties and it’s happening in urban cities. So we have the hiring crisis, not enough applying and then some of us in the larger offices are getting the double whammy, which is we’re not only not able to attract, but the ones that we do attract are turning us down.”

The following month, the head public defender for Osceola and Orange counties told a local TV station that he couldn’t fill about 20 percent of his full-time positions. The state just didn’t pay enough. The annual turnover rate among public defenders across the state is 28 percent. In some districts, it’s higher than 50 percent.

In Broward County, where housing costs have climbed to 60 percent higher than the national average, starting salaries for public defenders and prosecutors are below the national mean. The public defender office in that county also gets about a third of the budget of the DA’s office.

As with other states, the problem gets worse outside major urban areas, where the cost of living may be lower, but salaries are too low to persuade recent law school grads to give up the allure of city life. As chief public defender put it to me, “When the Miami-Dade or Orlando public defender offices get a cold, rural parts of the state die of pneumonia.”

Some of these problems are pandemic-related — prosecutors’ offices have had problems keeping staff, too — and some of the caseload issues are due to the pandemic-era surge in some crimes.

But it’s also a product of policy. DeSantis’s tough on crime policies — and his conspicuous removal of two elected state’s attorneys whom he found insufficiently law and order — has set a tone for the state.

“The policies of state’s attorneys are now primarily drive by fear,” one public defender told me. “Public safety has nothing to do with it. They just don’t want to get on the wrong side of DeSantis.”

Florida has seen a 49 percent increase in felony charges from pre-pandemic levels, and a 54 percent increase in misdemeanor charges. That’s causing a surge in caseloads, which is leading to job dissatisfaction, which is causing another exodus from public defender offices. And that only increases the caseloads for everyone left.

“After the governor removed those two state’s attorneys, prosecutors stopped nol-prossing cases,” one public defender told me. “They’re much less likely to recommend diversion, and they now charge every low-level possession crime as harshly as possible.” I was told that at least one state’s attorney’s office has eliminated diversion entirely.

The states of indigent defense, part three: Florida and GeorgiaArchival photo of prisoners marching at a “boot camp” run out of the Sumner County Correctional Institution (Getty).

One specific frustration cited by several people I interviewed has been a spike in arrests of homeless people. Such arrests are keeping with a tone set by DeSantis — and by Republicans around the country — that emphasizes “cleaning up” downtown and tourist areas and arresting our way out of the ongoing crises in mental illness and homelessness driven by the pandemic-driven cuts to social services.

The problem is compounded by Florida’s police-friendly “resisting arrest” law, which permits a felony charge for “resistance” as slight as tensing an arm while police officers administer handcuffs. Homeless people can be understandably upset and resistant when they’re arrested for what amounts to merely existing while homeless, so a disproportionate percentage of these arrests now bring felony charges. Because of the current political climate, prosecutors are then reluctant to drop or reduce it.

Setting aside the “basic decency and humanity” objection to charging homeless people with felonies for not having a home, the spike in these charges is also jamming up the jails and courts, and driving up the caseloads of prosecutors and public defenders.

DeSantis has responded by promising to hire more public defenders and proposing innovative and proven ways to produce more low-income housing.

Just kidding. In March, DeSantis signed a new law making it a crime to sleep in public spaces.

The surging caseloads and high turnover have created another barrier to attracting and retaining new attorneys, for both prosecutor and public defense offcies: morale.

“In the past, we’d occasionally get surges in cases,” one defense attorney told me. “But you could put in a few months of long days knowing there was some relief in sight. But since we can’t hire or keep attorneys anymore, there’s just no sense that it’s ever going to let up. That pushes more people to leave. That means more cases for everyone else. It just never ends.”

The irony, public defenders say, is that DeSantis’s removal of the two state’s attorneys has actually made the state less safe. Pretty much every prosecutor charges and seeks prison time for serious crimes. The dispute between politicians like DeSantis and reform-oriented prosecutors tends to be over how to charge and punish lower-level crimes. So if you’re a state’s attorney and you don’t want the governor’s office breathing down your neck, you now go out of your way to charge those low-level crimes as harshly as possible.

But because there’s also a critical shortage of prosecutors, and because there are far more low-level crimes than serious ones, aggressively prosecuting low-level crimes means fewer prosecutors and resources — and fewer public defenders — to handle the serious cases.

A Lee Enterprises investigation found that in 2022, public defenders in Florida had caseloads 10 times larger than the new RAND recommendations.

This is effecting the quality of public defense in the state. In Sarasota County, a local paper reported that indigent defendants facing low-level felonies could go months without any communication from their attorneys. One, who was arrested in 2022, had been in pre-trial detention for ten months. He’d heard from his attorney just three times. Another, also arrested in 2022, had heard from his attorney three times in seven months.

In Miami-Dade County, the average time a charged person spends in jail awaiting trial has increased 25 percent over the last few years, from 30 days to 38. For more serious crimes, suspects can wait from several months to more than a year.

“We’re just cogs now,” one public defender told me. “We aren’t representing clients anymore. We’re just processing cases.”

The staffing issues in Florida have become so dire that state public defense officials recently asked the courts to allow indigent defendants to be represented by recent law school graduates before they’ve passed the bar. This seems like a bad idea, given that nearly half the people who take the state bar fail it on the first try.

As I’ve discussed in prior installments of this series, the model of indigent defense that seems most promising right now is the holistic model, in which public defenders help their clients fight all the ways a criminal charge can disrupt their lives. So in addition to fighting the charge itself, they might assist the client with finding drug or mental health treatment. A holistic office will help clients with immigration issues, child custody, and even work to keep them employed or prevent them from being evicted.

Some of the larger offices in Florida do utilize social workers and mitigation specialists. But state law actually prohibits public defense offices from providing legal assistance outside of criminal law. So holistic public defense is actually illegal in Florida. Some district offices will refer clients to other state agencies or non-profits for help with immigration or family law, but in much of the state, the clients are on their own.

For indigent people, exercising the right to a lawyer can bring debts that extend how long they lose their right to vote.

DeSantis and the state legislature have also been pushing for more death sentences and more executions. The governor recently signed a law allowing for death sentences if just 8 out of 12 jurors recommend one, as opposed to the unanimous requirement in every other state. The state also passed a law allowing for the death penalty for sexual battery of a child under 12 (despite a well-documented, relatively recent history demonstrating how easily people can be falsely convicted of such crimes). Both laws could well be struck down in federal court, but in the meantime, they’re expected to sow further chaos in public defense offices. Capital cases take the most time and eat up the most resources.

Florida already has a massive Death Row. It also has had more death row exonerations than any other state, and this push for more death sentences and executions hasn’t come with more money for capital defense.

One defense investigator told me that outside the major cities, trial-level public defense in capital cases is “pathetic.” This investigator said that in one district public defense office, the two attorneys who handled death penalty cases for two decades didn’t offer mitigation evidence in a single case. This investigator told me that among the offices they had worked with, “probably more than half” the capital public defenders actually support the death penalty, and added, “most of them are pretty enthusiastic about it.”

This is just one source. But it’s a source with more than 20 years of experience in public defense in several different judicial districts around the state.

If a public defender’s office has a conflict in a case — if they’re representing one of multiple defendants accused of the same crime, for example — the conflicted client goes to a state-run conflict office. If there’s a conflict there, that case is contracted out to a private attorney.

This happens more often than you’d think. The Orlando Sentinel reported in 2018 that defendants facing the death penalty in Orange and Osceola counties were finding it difficult to obtain private attorneys in cases that had been conflicted out of the public defender offices. The main reason for this is that the state caps attorneys fees for capital cases at $25,000, and total spending at $75,000. A bare bones death penalty defense costs somewhere between $120,000 to $500,000. A good defense can easily top $1 million. Qualified private attorneys told the paper there was no way to continue to take capital cases — and to continue to try them ethically — without going bankrupt.

The sources I consulted for this post did tell me that Florida’s capital post-conviction offices — the offices that represent death row prisoners in their appeals — are generally well-funded and staffed with well-qualified attorneys. This is true of most death penalty states, mostly because the federal courts have told them they can’t execute people unless they provide quality post-conviction representation. The problem is that once a case is in post-conviction, it’s much more difficult for prisoners to persuade courts to reopen their cases.

Florida charges indigent defendants non-waivable $50 administrative fee to obtain a public defender for misdemeanor cases — $100 for felony cases. There’s an additional $50 fee if they’re convicted. Indigent defendants can also be required to reimburse the state for the full cost of their defense, and repayment is often a condition of probation.

When determining the amount of reimbursement required, Florida’s courts are not permitted to consider a defendant’s ability to pay. These fines and fees are part of the funding for the state’s indigent defense system. Some courts send past due reimbursement balances to collection agencies.

Again, from Parnell’s interview with Dimming: “Part of our budget comes from collecting those fees. We don’t want our indigents clients to suddenly have to decide, ‘Do I have a lawyer and pay a fee or do I buy groceries for my wife and kids? It creates a dilemma for us. We talk about how we’re grossly underfunded and people look at us and say, ‘Well, if you charge clients more, you could have more resources. But that’s just not who we are.’”

In 2018, Florida voters overwhelmingly passed a ballot initiative to restore the voting rights of felons once they serve their sentences. But the state supreme court has since interpreted that to mean that the convicted must also pay off all of their fines, fees, and restitution. For indigent people, this means that exercising their right to ask for a lawyer could add to their debts to the state, which could extend how long they lose their right to vote. Parnell also points out in his interview with Dimming that in Florida, someone earning the state’s minimum wage would likely be considered to wealthy to be given a public defender.

Failure to pay fines and fees even for misdemeanor offenses can also result in a loss of voting rights, a suspension of your drivers license, and probation. An ABA report on misdemeanor courts published earlier this year found that a third of drivers in Miami-Dade County had suspended licenses for failure to pay court costs. “Time and time again, in courts across Florida, members of the ABA research team witnessed individuals assessed fines and fees far beyond their ability to pay. Their pleas for relief went unheeded regardless of veracity or merit because there is no recourse.”

The researchers added, “Under Florida law judges are not permitted to waive or reduce fees on the basis of ability to pay . . . Often, defendants had significant past debt in collection from other unpaid fines and fees. Florida’s fines and fees laws trap these individuals in a cycle of increasing debt and justice system involvement.”

Qualified private practice death penalty attorneys in Florida have said that given what the state pays, to try capital cases in an ethical way would bankrupt them.

In 2019, the Miami New Times published a long investigation of how misdemeanor charges are handled across the state. The publication found that the majority of people charged with a misdemeanor in Florida — 55 percent —hadn’t been provided with a public defender. In some judicial districts, it was more than 60 percent. The paper found that some police and prosecutors specifically filed charges in a manner that would preclude the appointment of a public defender, particularly for “contempt of cop”-type charges or in which someone had alleged police abuse or misconduct. The publication also found that prosecutors routinely told courts they wouldn’t be seeking jail time in a case solely to deny the defendant access a public defender, even though the charge could still bring hefty fines, probation, or, often unbeknownst to the defendant, deportation.

That investigation was published before the pandemic. Now, there are far more felony cases, far more misdemeanor cases, and far fewer public defenders to handle both.


Approximate per capita spending on indigent defense: $10.12

Ratio of DA budget to public defense budget: 1.06:1

Ratio of state-level police/corrections spending to state-level indigent defense spending: 49:1

As with most states, the story of public defense in Georgia seems to be one of ongoing overlapping crises. The state supreme court has in theory “capped” public defender caseloads at 150 felonies per year, but there’s no way to enforce that standard, and no one has bothered to try. One rural public defender told Hunter Parnell in an interview last year that, at the time, he had more than 400 open cases.

You could go back 50 years with media reports about the crises in Georgia. For brevity’s sake I’ll start in 1991, when the Atlanta Journal-Constitution reported on a man who spent six weeks in the Fulton County jail after the charges against him had been dropped. Because he was never indicted, he had never been assigned a public defender. So there was no one to point out that he shouldn’t be in jail.

In another case, a man was mistakenly indicted for the crimes of a man with the same name. He was never given an attorney. After six months behind bars, he pleaded guilty to the other man’s crimes because at that point, he’d already been in jail longer than the sentence for those crimes.

An ABA report published at about that time found that the DA’s office in Fulton County had three times as many attorneys, eight times as many investigators (not counting police departments), and nearly seven times the support staff of public defenders.

At the time, most Georgia counties contracted all indigent cases out to private attorneys. The low bidder then took whatever percentage of indigent cases called for in the contract. For smaller counties, that often meant one attorney took every case. AJC columnist Bill Rankin reported in 2001, for example, that the public defender for Greene County won the contract to handle 400 felony cases per year for $30,000. With his private cases, he often had 40 or more arraignments per day.

Lawyers could sometimes get more money for complex cases, but they were at the mercy of the courts. One attorney who represented a woman in a long and complicated child murder case asked for $12,000 for investigators, experts, and other expenses. He got $4,500.

The Fulton County Jail (Photo by Elijah Nouvelage for The Washington Post, via Getty Images)

In response to these reports, in 2003 the state created the Georgia Public Defense System (GPDS) to administer indigent defense around the state. The problem, as noted above, is that the head of GPDS is appointed by and reports to the governor. This makes it a political position, and presents a conflict for one of that positions most important functions — advocating for public defense. This is particularly true when, as now, the state has an avowed law-and-order governor.

“The constitutional protections of poor people in Georgia are now totally dependent on a governor who is openly hostile to the rights of the accused,” says Atteyah Hollie of the Southern Center for Human Rights. “That’s really the biggest problem with this system.”

Today, each district public defense office receives state funding to hire one attorney, one administrative assistant, and one investigator for each judge in that district. Beyond that, it’s up to individual counties to provide funding for office space and additional staffing. Public defenders I spoke with say this can lead to some huge disparities in pay, sometimes within the same district, depending on how much the county wants to allocate.

But Georgia counties can also opt out of the state system entirely. Currently, six of the state’s more populous counties do, which means about a quarter of the state’s population is not represented by the state-run system. That’s good in the sense that the heads of those offices are freer to advocate and lobby for better indigent defense. But it also means that they get less state funding, and aren’t subject to the oversight, training, and standards that come with a state-run system.

Even among the counties that opt in, some also have municipal, magistrate, or other lower courts where defendants still aren’t covered by the new system, even though those courts could hear misdemeanor or felony cases resulting in incarceration.

It aonly took a few years under the new system before the state began to slash its budget. In 2007, the budget for cases that conflicted with public defender offices was cut nearly in half, which resulted in layoffs of 17 attorneys in Fulton County alone.

In 2008 the AJC reported that in Houston County, eight public defenders handled 6,000 annual felony cases — or a whopping 750 per attorney. Despite the jaw-dropping caseload, that office was at least well run and had experienced attorneys. The local DA, frustrated that those attorneys were stymying his prosecutors in court, deployed some accounting gimmickry to argue that the county spent almost as much on indigent defense as on prosecution (the horror!). That couldn’t stand, so a commission recommended abolishing the public defender office entirely.

Despite the DA’s claims, the paper found that the state budgeted $43.6 million for prosecutors, versus just $5.6 million for public defense.

“One public defender said his office was mold-infested, and had a leaky roof and bad plumbing. Two windows had fallen out due to rot in the walls, and the stairs to the office had collapsed. After complaining about all of this, he was fired.”

The following year brought more budget cuts. Local news outlets reported that public defenders could only get funding to hire their own expert witnesses in exceptional circumstances. The state also cut funding for training public defenders. One public defender wrote in an op-ed that because of budgetary restraints, he was pressured to persuade clients to accept plea bargains that weren’t in their best interest. He had also been forced to take cases despite clear conflicts with other clients. None of the line defenders in his office had more than two years of experience, and on average they had about 270 open cases at a time.

In 2014, a public defender in central Georgia sued the state. He and just one other full-time lawyer handled all the cases in his judicial district — about 350-400 felonies per year — and, due to budget cuts, they had been asked to take on cases from another district as well. According to the lawsuit, they’d been asked to do all of this in a mold-infested office with a leaky roof and bad plumbing. Two windows had fallen out due to rot in the walls, and the stairs to the office had collapsed. After complaining about all of this, he was fired. He later won his job back in the lawsuit.

The following year, the lack of representation got so bad in one judicial district — particularly for juveniles — that the U.S. Department of Justice filed its own lawsuit. The four counties in that district eventually entered into a consent decree requiring them to provide better representation.

In 2018, the Southern Center for Human Rights alleged that in Fulton County (Atlanta), public defenders were handling 500 to 1,000 per year, and lacked appropriate workspace to do their jobs, including shortages of basic office supplies like printers. In one office, 17 attorneys and three support staff worked out of a small room with just three desks.

It all seems to have gotten quite a bit worse under Gov. Brian Kemp, who has made some major cuts to the public defense budget since taking office. In an interview with Georgia Public Broadcasting last year, Jason Sheffield, then the head of the Georgia Association of Criminal Defense Lawyers, described the palpable change after Kemp took office.

. . . something changed that so fundamentally undermined the efforts of public defenders that they began to feel unappreciated, unsupported, and then their offices were taken away. Then their printers were taken away. And paper was taken away. The camaraderie disappeared and people started to feel like they didn’t have a home to build their case within to protect these people accused . . .

Under new leadership, they started having things taken away, in a way that appeared to be politically motivated.

. . . when you have the governor encouraging cuts and you have the director then making those cuts to an organization that is already underfunded, you begin to chip away at the spirit of the people who provide protections for indigent persons statewide.

Currently, about 40 percent of Georgia indigent defense is funded at the state level. But it varies widely from county to country.

The Kemp administration also gave 85 percent of Georgia’s federal COVID relief funding earmarked for the criminal justice system to judges and prosecutors, which only exacerbated the existing staffing disparities.

One Fulton County public defender told the AJC in 2022 that she was “weary of the struggle to get basic tools to defend her indigent clients: investigators, psychological evaluations, even office printer paper.” When she filed a human resources complaint about all of this, she was fired.

The Southern Center reported last year that there were at least 600 people in the state’s jails who had no representation at all. Most had been there for months.

With steep cuts affecting everything from office supplies to expert witnesses, mass resignations followed. That increased the workload for the attorneys that remained, which then led to more resignations.

This cycle resulted in huge backups in the courts, which then led to overcrowding and horrific conditions in the jails. A Southern Center attorney told the AJC in 2022 that inmates at the Fulton County jail sleep on the floor, and battle “lice, roaches, standing water, [and] broken toilets.”

Last August, the Southern Center released a trove of internal documents revealing even more problems, including complaints from judges about defendants who had no representation at all. In one email to her superiors, an Atlanta public defender complained that she had more than 550 active felony cases, and was spread far too thin to provide effective representation.

Conflict cases — known in Georgia as “C3” defendants — continue to be an especially dire problem. From an AJC article on the documents obtained by the Southern Center:

Judges voiced concerns to Alli and others about the parade of unrepresented defendants appearing in court, many of whom have languished in jail as they await legal representation.

“As you are aware, the lack of C3 attorneys has worked to cause grave injustice to those persons subject to charges brought by the State, particularly those who are in custody,” Judge Leftridge said in a May 2022 email to GPDC management.

A month later, Fulton County Superior Court Chief Judge Ural Glanville wrote to officials in the state’s public defender agency for an update on several unrepresented defendants in his courtroom, some of whom had been incarcerated for months while their cases languished. In several cases, the agency told the judge there were administrative steps remaining before attorneys could be appointed.

The publication Atlanta News First reported last year that Georgia’s C3 defendants can routinely wait in jail for months before they’re appointed an attorney. Some have waited more than a year.

Despite these complaints from public defenders and stern warnings from judges, Omotayo Alli — the head of the Georgia Public Defense Council (GPDC) — insisted at the time that everything was fine. She said that the state had more than enough attorneys to represent everyone who needed one. When asked about the attorney who was juggling more than 500 active felony cases, Alli told one news outlet that she didn’t believe the attorney. Reporters at the news outlet checked the state’s case management system and discovered that the attorney had indeed been wrong about her caseload — she actually had 687 active cases.

The Fulton County, Georgia, courthouse.(Photo by Alyssa Pointer/Getty Images)

A couple months later, Alli walked back her comments, and acknowledged that attorneys in the state routinely handle more than 400 felony cases at a time. But she said the problem wasn’t a lack of funding, but an inability to hire new attorneys. (It seems like the two might be related!) Alli’s office is now facing a lawsuit from the Southern Center, alleging that her office has responded to the group’s reports on unrepresented people in state jails by refusing to release information about them.

All of the public defenders with whom I spoke were critical of Alli, though most were understandably unwilling to be quoted by name. They told me Alli’s office had even intervened in how they how handle cases. None were willing to talk about what has happened in their own districts, but they did discuss what they’d seen in others. Two attorneys told me, for example, that the public defenders in one district office were fed up with how long their clients had to wait in jail for hearings. So they filed a series of motions demanding those clients’ constitutional right to a speedy trial. After complaints from judges and prosecutors, Alli’s office allegedly demanded that the office retract the speedy trial motions — and that they do so without first consulting with their clients.

The Southern Center’s Hollie, who can speak more freely, told me that Alli’s office, which in most states would be supporting and lobbying for public defenders around the state, now has an antagonistic relationship with many chief public defenders. “The last people who should be thwarting your ability to effectively represent your clients is the agency that’s supposed to be advocating for you,” she says. “That ought to be the clarion call that Georgia’s system isn’t working.”

Given these issues, one might think there’s an advantage to opting out of the state system. Gwinnett County, the state’s second largest by population, is one of the handful that have. Instead, indigent defense there is still contracted out to private attorneys. But a report by the Wren Collective published in January found a host of problems.

First, the county faces a dwindling number of attorneys willing to take on indigent cases — from 132 before the pandemic to just 80. Those 80 attorneys are handling the county’s 13,000 cases per year. That’s about 160 cases per year, and these are all attorneys who also have a private practice. In response, rather than provide better pay and incentives so more attorneys would take cases, the county retracted a rule that had capped the number of felony cases private attorneys can take at 100.

The county has increased the hourly rate for private attorneys who take indigent cases, to $150-$175 per hour for felonies. But that’s still on the low end of the hourly rate for most private defense attorneys. The entirely predictable result: the attorneys who take indigent cases tend to prioritize their private clients.

The Wren Collective found that in 2022 “almost no attorney billed above $1500 per case, even attorneys who are on the serious felonies appointment list.” To help put that figure in perspective, consider that the 2023 RAND study recommends that attorneys spend at least 35 hours on even low level felonies. It recommends 57 on mid-level felonies, 100 on felonies that could bring 10 years or more in prison, and 248 hours on murder cases.

In Gwinnett County, the lawyers who take indigent cases are spending between 10 and 20 hours on even their most serious cases. The Wren study also found that of the 4,000 felony cases these attorneys took in 2022, they had hired an investigator in less than 4 percent, and hired an expert in less than one percent. The researchers couldn’t find a singe case in which an attorney had hired a social worker. They also found no evidence that these attorneys were hiring interpreters — in a county where 35 percent of residents don’t speak English as their first language.

Most dedicated public defender offices have salaried investigators and social workers on staff. When the private attorneys in Gwinnett County handle indigent cases, they need to request funding from a judge to hire either. That extra step that can be a major disincentive. It’s more work, and it can also tip the state off to defense strategy. The report also found that there’s little training provided for these attorneys, little feedback to help them improve their representation, and little oversight to hold them accountable when they’re inadequate.

The statewide system too is having problems attracting and retaining the private attorneys who take cases that are conflicted out of the public defender offices. Georgia currently pays private attorneys who handle non-capital murder cases $7,500. That isn’t much, but it’s double what it was just a few years ago. Again, the RAND study recommends that attorneys spend 248 hours on murder cases. Private criminal defense attorneys in Georgia make somewhere between $150 and $500 per hour. If we were take the low end of that scale, $150, we’d expect the average attorney be paid $37,200 to ethically defend a murder charge. Georgia’s $7,500 amounts to about $30 per hour. As one attorney told me, “When I bring this up with people they act like I’m asking them to feel sorry for these attorneys. That isn’t the issue at all. They’ll be fine. The problem is that they’ll just stop taking indigent cases. And at that point everything starts breaking down.”

Hollie says the shortage of private attorneys willing to take conflict cases is especially worrisome because Georgia Attorney General Christopher Carr has been aggressive about bringing charges under the state’s prosecutor-friendly gang and racketeering statutes, as he’s currently doing against “Cop City” protesters. (We’ve also seen the racketeering laws come into play with the Atlanta DA’s handling of the Trump/election interference case and the Young Thug trial.) That means lots of cases with multiple defendants, which means lots of conflicts, which necessitates the need to contract a lot more cases out to private attorneys.

In 2015, Georgia also did away with a series of professional standards required of attorneys who represent the indigent, such as specialized training for representing minors, or requirements on how often to meet with clients. “In Georgia, the ethics bar today is higher for real estate agents and barbers than it is for people who do indigent defense,” Hollie says.

As in other states, the rural parts of Georgia have unique barriers to effective inigent defense. “Our prosecutors don’t believe in rehab or diversion anyway,” one rural public defender tells me. “But on the rare occasion we can get it, most of my clients live an hour or more from the nearest facility. They might have one semi-reliable car in the family, and there’s no public transportation. And if you miss a meeting, you’re back in court.”

One attorney told me the wait to get into the few drug treatment centers to which his clients have access can be a few months or more, which both dissuades courts and prosecutors from considering diversion, but also makes him reluctant to ask for diversion himself if his client in crisis and needs help right away. Another rural public defender echoed those concerns on Parnell’s podcast. He’d come to the unfortunate conclusion that such clients might be better off in jail.

The Georgia bar is comparatively stingy about reciprocity when it comes to barring attorneys from other states, so it an be difficult to recruit out-of-state attorneys to work in public defense. And as with other states, those who do work in Georgia tend to prefer urban areas over rural ones. So recruiting in rural parts of the state is especially difficult.

Georgia imposes a $50 application fee to obtain a public defender, though that charge can be waived by a court. The state can also charge defendants up to the full cost of their public defense, most of which goes toward public defense funding. Attorneys I spoke with also said that, depending on the judge, the process of obtaining a public defender can be burdensome. Some judges require tax and financial forms that poorer people may not have.

Georgia’s indigent defendants are also inundated with extra fines, fees, and surcharges. One 2021 study found that fines and fees made up more than 10 percent of revenue for Georgia municipalities, five times the national average. A 2014 NPR report found that the state routinely charged defendants not only for their public defense, but for electronic monitoring, probation monitoring, and room and board for time spent in jail.

The AJC reported in 2017 that the state’s legislature has continued to approve an ever-increasing number of surcharges for traffic offenses, to the point where the cost of speeding ticket — which can already range from $500 – $1,000 for the infraction itself — had nearly doubled. These surcharges have been earmarked for a panoply of causes, including spinal court injury research, a DUI victims’ fund, police and prosecutor training, and retirement funds for judges, court employees, and police officers — all of whom now have a strong incentive to lobby the legislature to ensure that the surcharges continue.

Under Georgia law, speeding and other traffic violations are misdemeanors punishable by up to a year in jail, but the state’s courts have ruled that if prosecutors aren’t asking for jail time, people accused of misdemeanors aren’t eligible for a public defender. Instead, they often get probation.

Georgia then contracts misdemeanor probation out to private companies, which creates an entirely new set of problems. These companies make money by charging people for their own probation. This means that every person who successfully completes probation is one less paying customer. So there’s a strong incentive for probation officers to “find” violations.

“I’ve seen judges make someone’s access to basic utilities like water or electricity depending on paying court fines,” Hollie says. “You can also be put on probation just for being unable to pay. These private probation companies thrive in misdemeanor court.”

As for appellate defense, as in most death penalty states, Georgia’s capital post-conviction offices tend to be better funded and staffed with more experienced attorneys than other indigent offices. Death sentences in Georgia have dropped off significantly in recent years, as have executions. After 14 executions in 24 months between 2014 and 2016, the state carried out just 7 over the following three years, and the execution of Willie Pye in March was the state’s first in over four years.

That I guess is a relatively positive note (hey, it’s a low bar!). So maybe it’s a good place to end.

Up next, I’ll look at Hawaii, Idaho, Illinois, Indiana, and Iowa. If you’re a public defender in one of these states and would like to chat with me, please feel free to drop me an email.