The Right To Counsel Is Under Threat

Many details and all substantive quotes come from an article in the new Atlantic Magazine, “On the Defensive,” by Dylan Walsh. It’s on their website. Very good article, and timely, but a word of warning: it will make you angry. Whatever looks like indignant commentary is probably mine.

The 6^th Amendment gives Americans the “right to counsel at trial” in criminal matters. With the Miranda case in the late 1960s, this was defined by the Supreme Court to include the right to counsel in any custodial interrogation, which was defined to include almost every phase of a criminal proceeding, from arrest to sentencing. A string of cases refined “counsel” to include “effective assistance of counsel.” Those were the days of favoring equality, and we, America and Americans, sought to give poor defendants something of the rights in court that a prosperous American might enjoy. So that’s the dream, anyway. The reality has not been quite as misty eyed and glossy as the dream.

Every jurisdiction in America has a mechanism for providing counsel to criminal defendants who cannot otherwise afford a lawyer. These vary from dedicated Public Defender offices to panels of private attorneys, or some combination of those things. This is not working out well in our new “you’re on your own” political climate. Decades of tax cuts for corporations and the rich have left most, if not all, local and state governments impoverished. It turns out that the concept that “there is just no money” does not work very well in the provision of the constitutional right to effective counsel to indigent defendants.

The America that has evolved since that prick Reagan was our president has moved away from equality and towards the favoring of liberty. We have given the rich the liberty to keep any money that they can get their hands on and to spend it any way they chose. We have also given corporations the liberty to keep any money that they can make and not spend it or invest it at all. I fall on the “equality” side of the equation, myself. After all, none of those individuals or corporations could have made a damn dime without us all chipping in. (And defending them when push came to shove, etc.)

Most criminal defendants do not have the wherewithal to pay a private attorney, and are therefore subject to the courts provision of free counsel. This has been an imperfect system at best, but by now the entire public defender system is in chaos due to underfunding. Abuses are rampant.

The article makes examples of a few states:

Louisiana: A local attorney in Concordia Parish is offered $1,000 for every 100 cases she accepts. That’s $10 per case. Public Defenders caseloads are many times the recommended maximum. In New Orleans, “until recently,” the Public Defender’s misdemeanor office handled 19,000 cases per year, “affording them an average of seven minutes for each client.” Indigent defense in Louisiana is funded largely through court fees. A defendant found guilty of a misdemeanor is required to pay court costs of $250. (If they cannot pay this, along with any fines, they are jailed for contempt of court.) The New Orleans Public Defenders office has resorted to crowd funding on the Internet. Louisiana has one of the “highest rates of proven wrongful convictions” in the country. And the public defender budget continues to be cut. The article states that “[d]istricts across Louisiana are firing lawyers and support staff, creating client waiting lists, canceling contracts with basic legal-research services, and dumping more cases on fewer attorneys for less compensation.” The 2017 Louisiana budget cuts funding by an additional 62%.

Georgia: A class action lawsuit in 2015 “revealed that Georgia juveniles were regularly denied legal representation before and during court appearances.”

Utah: “A recent report . . . found that more than half of defendants facing misdemeanor charges in municipal court appeared without an attorney.” Amazingly, sometimes there was not even a prosecutor present. The judge did everything him or herself. These judges advised defendants and negotiated plea deals, flying solo. Of course, the judges also did the sentencing themselves.

Other states that have been sued for violations include Idaho, California, New York, Washington and Michigan.

Who are these defendants? One case that is described in the article was that of a twenty-one-year-old who had been found in possession of weed while on probation for a prior drug conviction. His plea offer was three years in prison followed by two years in a residential facility for drug rehab. The alternative was certain conviction and a twenty year prison sentence.

This dovetails nicely with another huge modern problem: prosecutorial overreach. These days, everything has been criminalized, and there are usually sentencing guidelines and mandatory minimum sentences in place. Prosecutors charge every defendant with a long laundry list of offences that usually end up with a “potential sentence” that will consume the average lifetime. (Like that kid’s twenty years for weed.) Under those circumstances, defendants will tend to take horrible plea bargains that will result in less than ten years, which is nothing these days. They will often do this even if they are innocent of the charges. Looking at twenty years, or life in prison, and having talked to their public defender for about ten minutes, they jump at the vague chance of ever returning to civilian life.

Noto bene Gideon v. Wainwright, Supreme Court 1963. The case held that “lawyers in criminal court are necessities, not luxuries.” The defendant had been convicted and jailed without a lawyer, and the court overturned the conviction. Upon the fiftieth anniversary of the case in 2013, the U.S. Attorney General, leading legal scholars, and just about everyone agreed that Gideon was an important case and that its spirit had been violated by underfunding.

The states’ argument that there is no money is not persuasive. Missouri was the subject of an American Bar Association study that suggested that their number of Public Defenders should be increased by 75 percent “to meet a basic level of quality.” The director of Missouri’s public defender system made the case for changes. He explained that the proposed changes would save the state money by lessening the artificial rise in the prison population that occurs when people are essentially railroaded (my phrase). The state legislature liked the idea, and passed a funding increase of $3.47 million for the public defenders’ office. It was vetoed, and the veto was overturned, and then the governor used his executive power to withhold the money. After being forced to provide it, he simply reduced the same budget elsewhere by the identical amount of money. Here’s the lie in the “no money” argument: the governor during the same period approved four million dollars for state fairground improvements; fifty two million dollars for a new state park; and a whopping $998 million for a new football stadium. So, the money was there, after all.

These days one hears a lot of mostly loose talk about criminal justice reform. There is a lot of bipartisan support for certain types of reform. Bail reform; the reduction of mandatory minimum sentences for non-violent offenses; prosecutorial discretion gone wild; the huge costs involved with mass incarceration. “But strangely absent from this discussion,” says Mr. Walsh, “is the role of public defenders.” What we have now is clearly not equal justice. The things that are under discussion are important, but talk, talk, talking about them will not change anything. I fear that that’s all it is, loose talk with little intention to actually do anything. It sounds so great! Someone cares! People sure are easy to fool, aren’t they?

I think that it would be great if we cared more about poor and mostly black Americans who have been accused of crimes, but that is not a popular position in today’s America. And anyway, I’m sure that that new football stadium is great.