Thousands of poor Delawareans go without effective legal counsel or any legal counsel at all at times, according to a recent report. In February, the Office of the Public Defender released The Crucible of Adversarial Testing: Access to Counsel in Delaware’s Criminal Courts, written by the Sixth Amendment Center, describing widespread deficiencies in Delaware’s public defender system.

The pressure on the system comes from various directions. Over the last 50 years, the U.S. Supreme Court has steadily expanded the right to counsel established in Gideon v. Wainwright in 1963 to cover any criminal defendant who may potentially lose their liberty, including those accused of misdemeanor crimes. In 2012, the court established the right to counsel in the plea-bargaining process.

This, coupled with the “tough on crime” movement and the fact that Delaware treats motor vehicle citations as criminal activity, has put excessive demand on the public defender’s office to the point where they must “triage justice” and provide effective legal representation only to defendants facing the most serious crimes. 

The American Bar Association has promulgated ten principles that a public defender system must meet to provide high quality, ethical and conflict-free legal counsel. Delaware meets only one of these principles in its entirety and one other in part, despite the acknowledged dedication of the lawyers who work in the public defender system. According to the report,

…able attorneys are working in a structure that prevents them from meeting constitutional adequacy.”

The report describes a system that is underfunded and structured for efficiency—moving people through as quickly as possible without consideration of their constitutional rights. Especially problematic is the subtle and not so subtle pressure for defendants to take a plea bargain without having either the opportunity to consult with a lawyer or to understand the full implications and potential collateral consequences of pleading guilty. Since the U.S. Supreme Court estimates that 94% of all criminal convictions are settled at the state level with plea negotiations and not trials, Delaware’s system of pleas fails to subject the prosecution’s case to meaningful adversarial testing. The report concludes,

Where a breakdown of the adversarial process has occurred, wholesale structural improvements are necessary.”

The denial of the right to counsel means that thousands of Delawareans must confront the power and authority of the police, the prosecutors and the courts alone, without an informed, experienced advocate at their side. The ACLU has been invited to sit on an advisory committee to evaluate and help advocate for the systemic changes needed to meet constitutional standards. We look forward to assisting in every way possible to improve Delaware’s system of indigent defense.

ACLU-DE Statement on Indigent Defense Report