Constitutional Crisis: The Need for a Creative Solution for the Overworked and Underfunded Public Defenders

Blog Post | 113 KY. L. J. ONLINE | February 20, 2025

Constitutional Crisis: The Need for a Creative Solution for the Overworked and Underfunded Public Defenders

By: Tori Harris, Staff Editor, Vol. 113 

The Sixth Amendment of the United States Constitution gives criminal defendants the right to counsel.[1] The Supreme Court made clear in 1936 that a person "who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."[2] This guarantee is not just the right to counsel, but the right to "effective assistance" of counsel.[3] Public defenders are the saviors who help ensure that indigent criminal defendants get the assistance they need.[4] According to a 2000 report, “80% of defendants charged with a felony . . . reported having public defenders or assigned counsel."[5] While the statistic is dated, it continues to demonstrate the significant importance of this right, considering the vast number of indigent people who rely on the public defender system. The major problem is that the system’s current operation is hitting a breaking point, potentially creating a constitutional crisis.[6] 

Typical issues faced by public defenders consist of large caseloads and lack of funding, which results in them being overworked and underpaid. According to the Kentucky Department of Public Advocacy, the average caseload for public defenders "far surpasses guidelines," with “no relief in sight.”[7] There are not enough attorneys or money to support the number of clients, resulting in “a criminal justice system that is stacked against the indigent."[8] Moreover, this is not exclusively a Kentucky problem but a nationwide one. For example, one lawyer in Louisiana had 194 felony cases in April 2017, with some defenders having more, and a 2022 Oregon study found that their public defenders would need to spend 26.6 hours per working day to meet the needs of the state.[9] 

The effects of the overworked system are numerous. First, large caseloads with few public defenders lead to overcrowded jails and large courtroom dockets, which increases the time spent in the courtroom for all individuals involved.[10] Second, racial disparities are furthered since Black defendants are disproportionately indigent.[11] Third, a negative public perception exists about public defenders who are simply doing what they can with the resources they have. Finally—and most importantly—this leads to indigent defendants not getting the important representation they need and have a constitutional right to. 

More funding is the best solution for public defenders, which would open doors to more resources and potentially increase their pay.[12] The system's current state is a circular problem of a lack of funding, leading to a lack of pay, for an overload of cases, driving attorneys away from this legal area, leaving the current public defenders in the same position. More money would help with breaking the cycle. While increased funding is the best solution to the problem, it is unlikely that more money, or the needed amount, will be distributed.[13] As a result, it is time to get creative with solutions. 

One potential approach is through artificial intelligence (AI). JusticeText is an AI platform created in 2015 by students at the University of Chicago with the goal of increasing access to justice.[14] The program aims to streamline the process of reviewing and organizing case evidence, reducing the time public defenders spend on certain tasks.[15] This time-saving aspect is achieved by having the program create transcriptions for body-worn camera footage, jail calls, interrogation videos, 911 calls, and more.[16] The Kentucky Department of Public Advocacy has first-hand experience with this program, finding that it helps with sifting through evidence and zeroing in on what is useful.[17] In fact, JusticeText announced a partnership with the Kentucky Department of Public Advocacy in 2024 and has also partnered with the Santa Cruz County Public Defender's Office and the University of Virginia Criminal Defense Clinic, demonstrating the potential of such a tool.[18] 

JusticeText is not the only AI platform that can help, and it is not the first time AI has been used in this context. In 2020, Forbes published an article on AI’s capability of document analysis for public defenders and highlighted the way AI could be beneficial when there is no funding for additional staff.[19] Additionally, in 2023, the Miami-Dade public defender's office started using CoCounsel to help with case preparation, which included assistance with first drafts and deposition preparation.[20] The chief deputy public defender of operations described the AI technology as being “part of the solution by improving efficiency.”[21]

The crisis that exists among public defenders has been going on for years, with many people aware of how underfunded and overworked public defenders are. However, with little action being taken, AI currently seems like a viable option for efficiency. Depending on the platform used, AI can help analyze video and audio files, conduct legal research, create initial drafts, and quickly review large volumes of case evidence, freeing up public defenders' time for more critical tasks.[22] While AI has been considered prominent in the legal field in general, it would be extremely valuable for public defenders.[23] "[L]awyers in criminal courts are necessities, not luxuries."[24] Without public defenders who are able to represent their clients properly, we will continue to fail to provide indigent people their Sixth Amendment constitutional right and create a system that is not about justice, but money.

The main entrance of the United States Supreme Court Building has the words "EQUAL JUSTICE UNDER LAW" written at the top.[25] How can the United States pride itself as a country that provides equal justice under the law if those who cannot afford it are not given appropriate representation? Therefore, immediate action needs to be taken to solve this problem through more creative solutions, like AI, to support public defenders and stop this constitutional crisis.

[1] U.S. Const. amend. VI.

[2] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

[3] Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

[4] Public Defender, Legal Info. Inst., https://www.law.cornell.edu/wex/public_defender (Aug. 2020).

[5] Caroline Wolf Harlow, Defense Counsel in Criminal Cases 5 (2000), https://bjs.ojp.gov/content/pub/pdf/dccc.pdf.

[6] See Anita Khandelwal & Girmay Zahilay, Our Public Defender System Is at the Breaking Point, Seattle Times (Sept. 15, 2023, 2:09 PM), https://www.seattletimes.com/opinion/our-public-defender-system-is-at-the-breaking-point/; Emma Anderson, If You Care About Freedom, You Should Be Asking Why We Don’t Fund Our Public Defender Systems, ACLU (Mar. 8, 2022), https://www.aclu.org/news/criminal-law-reform/if-you-care-about-freedom-you-should-be-asking-why-we-dont-fund-our-public-defender-systems.

[7] Issues in Public Defense, Dep’t of Pub. Advoc., https://dpa.ky.gov/kentucky-department-of-public-advocacy/issues/ (last visited Feb. 9, 2025).  

[8] Id.

[9] Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times (Jan. 31, 2019), https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html; Moss Adams LLP & Am. Bar Ass’n, The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workload Standards 5 (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls-sclaid-or-proj-rept.pdf.    

[10] See Issues in Public Defense, supra note 7.

[11] Aaron Gottlieb, Making Gideon Count? Public Defender Resources and Felony Case Outcomes for Black, White, and Latinx Individuals, 13 Race & Just. 506, 507 (2023).

[12] See Dina Sayegh Doll, Criminal Justice Reform Requires Bolstering the Public Defender, Bloomberg L. (Oct. 26, 2021, 4:01 AM), https://news.bloomberglaw.com/us-law-week/criminal-justice-reform-requires-bolstering-the-public-defender.

[13] See Statement of ABA President Mary Smith Re: Increased Funding for Federal Public Defenders, Am. Bar Ass’n (July 12, 2024), https://www.americanbar.org/news/abanews/aba-news-archives/2024/07/statement-of-aba-president-re-funding-federal-public-defenders/#:~:text=The%20federal%20courts%20have%20requested,who%20cannot%20afford%20a%20lawyer.

[14] Taylor Six, Can Artificial Intelligence Help in KY Legal Defense? Yes, Public Defenders Say, Lexington Herald-Leader (Aug. 5, 2024, 9:03 AM), https://www.kentucky.com/news/local/crime/article290514014.html     .

[15] Id.      

[16] Id.; Devshi Mehrotra, Evidence Management Platform for Fairer Criminal Justice Outcomes, Medium (Oct. 21, 2020), https://blog.codingitforward.com/justicetext-evidence-management-platform-for-fairer-criminal-justice-outcomes-3478e7243ba1.

[17] Six, supra note 14.

[18] JusticeText Rolls Out AI-Powered Bodycam Transcription for Kentucky Public Defenders, JusticeText (Apr. 10, 2024), https://justicetext.com/kentucky-dpa/; Santa Cruz County Public Defender’s Office Implements JusticeText for AI-Driven Evidence Review, JusticeText (Dec. 6, 2024), https://justicetext.com/santa-cruz-public-defenders/; University of Virginia Law Clinic Uses JusticeText to Prepare Students for Tech-Enabled Public Defense, JusticeText (Mar. 6, 2023), https://justicetext.com/uva-law-clinic/. 

[19] Ron Schmelzer, AI in the Public Defender’s Office: Interview with Darrell Malone Jr., Tubman Project, Forbes (June 7, 2020, 9:36 AM), https://www.forbes.com/sites/cognitiveworld/2020/06/07/ai-in-the-public-defenders-office-interview-with-darrell-malone-jr-tubman-project/.

[20] Jim Ash, Miami-Dade Public Defender Is Using Acritical Intelligence for Research and Case Preparation, Fla. Bar (Dec. 26, 2023), https://www.floridabar.org/the-florida-bar-news/miami-dade-public-defender-is-using-artificial-intelligence-for-research-and-for-case-preparation/.

[21] Id.

[22] See How AI Is Transforming the Legal Profession (2025), Thomson Reuters (Jan. 16, 2025),  https://legal.thomsonreuters.com/blog/how-ai-is-transforming-the-legal-profession/#:~:text=According%20to%20the%20professionals%20surveyed,while%20showing%20that%20AI%20could; Six, supra note 14.

[23] See How AI Is Transforming the Legal Profession (2025), supra note 22.

[24] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

[25] About the Court, Sup. Ct. U.S., https://www.supremecourt.gov/about/about.aspx (last visited Feb. 9, 2025).