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.