On the 50th Anniversary of Gideon, Part II: How We Provide Counsel for the Defense of the Indigent Accused

Posted: March 25, 2013 in Criminal Law
Tags: , , , , , , , , , ,

In a post here last week about the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, I asked why the Constitution requires the state to pay for a lawyer for defendants who cannot afford a lawyer.   Here, we move on to another question: how does our society shoulder this burden?

We can answer that question in two ways.

The first answer is really an evaluation: we do not do it very well.  I kept my eyes open for stories about Gideon in the media and on the web in the last couple of weeks, and I found none saying that we were doing a great job.  Instead, the picture was bleak almost everywhere.  The New York Times’ recent stories on Gideon (here and here) were typical, recounting stories of people whose difficulties were made worse by inadequate or non-existent legal defense.   At the local level in the city where I live, the newspaper ran a lengthy negative story (here) about public defense services in our region and our state.

The second way to answer the question is structural.  How are publicly-funded criminal defense services delivered in the U.S.?  According to the American Bar Association’s Criminal Justice Standards for Defense Function, there are three basic models, and sometimes they are used in combination.  They are:

* Defender offices — These are public agencies, funded by government.  The lawyers who work in these agencies are salaried, sometimes with outside non-criminal law practices on the side, and sometimes not.  (The better rule is to prohibit these outside practices.)

* Court appointment systems — In these arrangements, courts appoint private lawyers to represent the indigent from a list that lawyers voluntarily join.  In most places, lawyers perform this work for a low flat fee per case.  This creates negative economic incentives for the lawyers to spend adequate time on the cases.

* Contract systems — In these systems, counties bid out all of the year’s criminal defense work to an individual lawyer or a law firm.  Despite the fact that the existing national standards mandate that these contracts not be awarded on the basis of the lowest bid, that is often how these arrangements are made.  The economic incentives in contract arrangements are, if anything, even worse than in court appointment systems.  Court appointment systems can also leave lawyers beholden to the appointing judges, sometimes intimidating the lawyers out of the necessary zealous representation.

The best practice is the establishment of an independent defender office, with the use court-appointed lawyers to take caseload overages and cases in which there are multiple defendants needing separate lawyers.

But in truth, all of these systems suffer from very basic problems.  There’s no political constituency in the U.S. that favors more funding for criminal defense, and few politicians are willing to stand up and say that we can’t have a functioning justice system based on adversary presentation of evidence unless we pay for it.  So, while there are some very good public defense operations in some places, we constantly see:

* chronic under-funding of defense agencies;

* crushing caseloads, far too large for any lawyer to do a competent, ethical job;

* little or no resources available for necessary non-lawyer services, such as investigation, expert witness services, and the like;

* governance structures for public defense that undermine the independence of the agencies;

* no resources for lawyer training;

* no continuity of representation for defendants through the pretrial and trial process; and

* unnecessary and sometimes lengthy waits for legal services, even for defendants in custody.

I don’t want to seem unduly negative.  There are some very good public defense agencies out there, and many thousands of dedicated lawyers who work in them.  But we, as a country, simply do not do enough to fulfill this important obligation.    And when we don’t, it isn’t just a matter of the accused not getting the services they should.  What’s happening is more basic: we are giving short shrift to our own values, and to our Constitution.  And there’s no way to square that with the idea that we are the fair people we think we are.

  1. Bragging about the number of pounds of illegally-seized dope that you’ve suppressed and how many indigents you walked hardly makes for good campaign fodder. I worry that this profession would not survive direct democracy.

  2. Cmdr. Paul Ruffolo says:

    Prof. Harris………I’ve commented previously and truly have every intention of reading your book.Unfortunately, the plethora of bad guys does not always allow us to find the time to read as much as we would like.Nonetheless,your recent commentary about an adversarial system providing defense attorneys for individuals charged with a crime,is intriguing and typical,which is why I will make the following commentary,even though I am certain you will disigree with it.

    One of your first comments was about the ethics of providing defense to offenders in our system.The defense bars first comment will always be that the subject is innocent until proven guilty…..which is absolutely true…………except for the fact that an individual cannot be legally charged without the existence of probable cause and a vetting of the salient aspects of the case by Felony Review(Screening) by the States Attorneys Office,as prosecutor.Additionally,most cases have a plethora of ancillary evidence (which you have access to,under discovery) which further makes evident your information of the case in chief. My point is, that the defense attorney’s wax elequent,ad nauseum about the noble effort to defend the poor and downtrodden,who have been eggregiously mistreated by the system. The truth about the ethical issues, involved in prosecution of offenders in a adversarial system is that BOTH SIDES should be seeking THE TRUTH….not a defense attorney trying to obfuscate and otherwise confuse an uneducated jury through legal slight of hand and immaterial issues, which seek to allege and infer that their client is innocent when,they know,that they are not.(which is un-ethical and un-truthful)

    Additionally,your comment about the Public defenders offices and defense attorney’s in general,have a high case load and not enough resources to compete with the prosecution,in order to mount a competant defense(which I assume would be the defense where the offender gets off…..) Nothing could be farther from the truth.Most prosecutors for the
    State have in excess of 500 cases a piece with minimal resources.As opposed to projects which are now quite popular(such as at Northwestern University) where untold numbers of UNPAID law students do all of the “grunt” work for attorneys to get offenders off.This far outstrips any reources available to the prosecution.

    And finally,you made a comment about the “People we are and what we stand for”(with reference to the defense)The questions that beg to be asked are”Just who are you(the defense)and what do you stand for? Because for those of us who ,as of today have 34 years in law enforcement,are Law Instructors and are still working on the job,would have to relate that we have seen this criminal justice system made a mockery of, by un-ethical attorneys, allegeding that the truth is not the truth,and that offenders never commit the crime they are charged with.(..and I am talking about quality cases involving copious amounts of bona fide evidence)

    In any case,Take Care and God Bless…………………………Cmdr.Paul Ruffolo

  3. qualandar says:

    Reblogged this on Indian Lawyers Express.

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