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Gideon’s Despair

Four things the next attorney general needs to know about America’s indigent defense crisis.

Fifty years after the U.S. Supreme Court first determined in Gideon v. Wainwright that states are responsible for providing public lawyers to poor defendants, the U.S. Department of Justice has found that right-to-counsel services in America “exist in a state of crisis.” The method through which public counsel is provided to the indigent accused is described alternatively in DOJ speeches as “inadequate,” “broken,” and “unjust,” with “devastating” consequences for both the defendant and society as a whole. The situation is “unacceptable,” “unconscionable,” “morally untenable,” “economically unsustainable,” and “unworthy of a legal system that stands as an example to all the world.”

The DOJ’s words are justified. Today, many courts across the country fail to provide any lawyers at all, despite the constitutional imperative to do so. Those that do often appoint lawyers who are so financially conflicted, or who juggle so many cases at once, that defendants have in effect no legal counsel advocating on their behalf. This leads to one of two results. Either the courts experience inordinate delays, with defendants waiting months in jail at taxpayers’ expense, or our courts become assembly lines to process poor people into jail or prison without adequately sorting the guilty from the innocent. Neither is acceptable. When an innocent person sits behind bars awaiting his day in court or is wrongfully incarcerated because his or her attorney did not have the time, ability, or resources to do the job right, the real perpetrator remains on the streets to continue endangering public safety.

Over the past six years, the DOJ under Attorney General Eric Holder has launched numerous offensives to make the promise of Gideon a reality in America. The Civil Rights Division was granted authority to initiate legal actions challenging the defective juvenile courts in Tennessee and Missouri. In ACLU class action lawsuits in New York and Washington, the DOJ entered statements of interest calling for effective indigent defense systems and limiting the workload of court-appointed attorneys. Mr. Holder created the Access to Justice initiative to work across federal agencies on this issue while supporting state and local governments in providing public lawyers in criminal matters. Federal grants and discretionary indigent defense funding increased at the Office of Justice Programs. And DOJ hosted a 50-state Indigent Defense Symposium that spawned numerous local reforms. Even as we thank Mr. Holder for all that he has done in support of the constitutional right to counsel, the depth and breadth of the issues undermining Gideon require still more from the next attorney general.

Now that a nominee has been named to replace Eric Holder, here are the four things the next Attorney General needs to know:

#1. The public defense community does not need to hear from you … judges do.

Though the speeches of Attorney General Holder and the other high-level DOJ officials define the problems perfectly in speech after speech, the DOJ most often talks about the crisis before the public defense community or at indigent defense summits hosted by groups like the American Bar Association. Those organizations and communities already know that the right to counsel is eroding in America. Judges do not.

The most prevalent manner for delivering indigent defense services in the United States is for a private attorney to handle an unlimited number of cases for a single flat fee, under contract to the judge presiding over the lawyer’s cases. (We estimate flat fee contracts are used in 64 percent of all counties). Generally, all trial expenses (experts, investigators, etc.) must be paid out of the same flat fee, meaning the lawyer’s take-home pay is depleted for seeking outside assistance. When judges are allowed to hand-select defense counsel in this manner, the judiciary is interfering with a lawyer’s ability to make independent decisions.

Judges need to hear that the independence of the defense function is not just a good idea – it is the law. The U.S. Supreme Court has stated that “independence of counsel” is “constitutionally protected,” and that “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” A lawyer operating under a flat fee contract to a judge necessarily takes into his consideration what must be done to please the court in order to get his next contract, instead of operating solely in the interests of his client. Judges must stop flat-fee contracting and hand-selecting attorneys, and the next Attorney General needs to be the one leading the call.

#2. The public defense community does not need to hear from you … prosecutors do.

Most people may be shocked to know that tens of thousands of poor people are convicted, and serve jail time, every year without ever having spoken to a criminal defense attorney. Every single one of those defendants had a right to a public lawyer, but in many of those courts, there may not even have been a defense lawyer in the courtroom. The Sixth Amendment Center calls them “no counsel courts.”

Courts employ a number of ways to get around their constitutional obligations to provide lawyers at critical stages of the criminal justice process, including threatening to have defendants pay the entire cost of their representation. The role judges play in coercing unrepresented defendants to plead guilty without talking to a lawyer is, on its own, a major issue that needs addressing. But the most pervasive problem resulting in defendants not being given lawyers is that many prosecutors seek out unrepresented defendants in advance of court hearings and engage in plea negotiations with defendants before the accused understands that they have the right to have a lawyer present during such negotiations.

Prosecutors know uninformed defendants will often plead guilty in exchange for the time spent in jail during the days or weeks they could not make bail. Of course, no one informs the defendant of all of the potential ways a criminal conviction may damage his life after release, including the potential loss of job opportunities, loss of public housing, loss of student loans, or even deportation.

Talking to public defenders about “no counsel courts” is unproductive. Even if they wanted to do something about it, they can’t. By definition, public defense attorneys are not even present to intervene. And, even if they were there in the courtroom watching defendants proceed without counsel, public defense lawyers generally have too many cases already to be able to step in effectively – with each new client’s case, they have less time to meet the needs of all.

And, lest anyone think this is purely a Southern issue, nowhere is this problem more pervasive than in Delaware where defendants in the Court of Common Pleas are told by court personnel to meet with prosecutors before the court will determine if the defendants are eligible for an attorney, and where the Chief Public Defender lacks the independence to do anything about it. Prosecutors must stop these practices, and our nation’s next chief prosecutor must be the first to tell them so.

#3: Any broad criminal justice reforms you favor will fail without first fixing the indigent defense crisis.

America’s deficient indigent defense services produce a myriad of seemingly disconnected problems throughout the greater criminal justice system. Why do convicted persons have difficulty re-entering society upon release from prison? They do so, in part, because their public advocates are prevented from continuing to fight on their behalf for better conditions of confinement, and treatment and reentry programs after they are incarcerated. Why is the United States one of the few countries in the world that still relies on bail? The answer is that many states and counties do not appoint counsel until after bail hearings (and often not until after arraignment or indictment). Without an impetus for change, the bail system continues unabated.

Point to almost any criminal justice issue – wrongful convictions, over-incarceration, non-violent offenders serving life sentences, etc. – and the root problem will be a lack of true advocacy on the part of people of insufficient means charged with or convicted of crime. Just as a doctor treating only the visible symptoms of an underlying ailment may fail the patient, the focus of any number of well-meaning advocacy groups to address the countless issues plaguing criminal justice without concurrently reforming indigent defense services will result in half-measures and unsustainable policies. Your own criminal justice goals therefore are dependent on you continuing, and indeed redoubling, Mr. Holder’s past efforts.

#4. The right to counsel is a non-partisan issue.

For all Mr. Holder has done on this issue at the national level, it is the Republican Party that has been advancing the right to counsel in the few states that have taken positive steps to rectify their own crises, such as Michigan, Idaho, and Louisiana. Why are Republicans leading on this issue? In my opinion, traditional conservatives and Tea Party members alike recognize that the right to counsel is more than a civil rights issue. It is a “tyranny of government versus individual liberty” issue that goes to the heart of who we are as a nation.

To be clear, impoverished communities of color are without question disproportionately impacted by the criminal justice system, including the failure to properly construct functioning indigent defense systems and fund them appropriately. But that is because tyranny always attacks people with the least power in the political process. Our criminal justice systems have evolved without the necessary checks and balances that competent defense lawyers bring to guard against such tyranny. Conservatives may believe in smaller government, but they also believe in the Bill of Rights. Just as the Second Amendment was originally created to allow citizens to protect their homes and families against an intrusion by government, so too does the Sixth Amendment give a person the tool – a lawyer – to defend his liberty from what the U.S. Supreme Court called the “machinery” of law enforcement.

The next attorney general should take a leading role in forming non-traditional alliances across party lines to fix the crisis. One place to start is decreasing the need for public defenders in the first place. Republicans are correct that the answer to every government crisis cannot be increased government spending. Currently, the right to counsel attaches only if there is a potential loss of liberty in a criminal or delinquency proceeding. A concerted, non-partisan effort focused on increasing cost-effective, supervised pre-trial diversion and treatment programs for low-level, non-violent offenders and/or re-classifying the sanctions on petty crimes to non-jailable violations are just two ways to use your office to move forward on this critical issue.

The Sixth Amendment Center is a non-partisan, non-profit organization founded to assist states and local governments in meeting their constitutional obligation to provide competent counsel to the indigent accused.