At the incessant urging of the Department of Justice, Congress has spent years feeding more money and power to federal prosecutors. Meanwhile, funding for citizen defenders has been left starving. The result is a system out of balance, with federal prosecutors inflicting widespread abuse of citizens' rights, while the ever-weaker, underfunded defender services valiantly struggle to preserve the most fundamental rights of all Americans. It is time for Congress to restore a healthy adversarial system to counter the well-recognized prosecutorial excesses.
I recently testified before the House Appropriations Subcommittee for the Departments of Commerce, State, Justice and the Judiciary. I told them about the prosecutorial phenomenon and urged correction. I told them about the critical responsibility they have, to fairly fund indigent defense services for citizens accused -- to ensure a fair battle against the massive, essentially unchecked powers and resources that for far too long Congress has been granting federal prosecutors.
This, the 35th anniversary of Gideon v. Wainwright, is not only an appropriate moment for this important message. It also seems to be an especially opportune time for it, politically.
Some Encouraging Signs
The same day I testified, I presented NACDL's esteemed Champion of Justice Award to the senior Republican member of the House (and senior member of the full Appropriations Committee), retiring Representative Joseph M. McDade (R-PA). He has been tirelessly leading the charge to curb federal prosecutorial excesses.After waging his own eight-year battle against federal bribery and RICO charges, and finally being vindicated by a jury, Representative McDade vowed to spend the rest of his days correcting the injustices in the current criminal justice system. He has been true to his word, translating his own vindication into a noble effort to vindicate the criminal justice system for all Americans.
He inspired and championed the Hyde Amendment to the Justice Department's last appropriations measure. That important new law allows the wrongfully prosecuted an opportunity to recoup their attorneys' fees. And now, Representative McDade is leading an impressive bipartisan effort to outlaw the infamous Thornburgh Memorandum/Reno Regulation, by which the Justice Department claims its prosecutors can act with impunity. They are exempted from the basic state and federal court rules of attorney ethics by which all other lawyers must abide. Within a few weeks of introduction, and by the time the House recessed during the Easter period, McDade's bill, H.R. 3396, had garnered over 70 co-sponsors. The list includes members of both parties and five committee chairmen, among many other leaders of the House Republican majority.
Also the same week of my testimony, House Judiciary Committee Chairman Henry Hyde (R-IL) circulated a "Dear Colleague" letter to all of his fellow members in the House, notifying them of his intention to bring to the House floor a bipartisan Manager's Amendment to H.R. 1965, which will be a True Civil Asset Reform Bill to curb prosecutorial abuses in that area. The Manager's Amendment is a flat rejection of the DOJ's arrogant, forfeiture-expanding concoction, H.R. 1965. A core aspect of Chairman Hyde's much-needed reform measure is a provision for court-appointed lawyers, to help indigent citizens battling the federal government over its summary taking of the citizens' property.
Likewise, the media has lately been full of calls to rein in federal prosecutorial excesses. For instance, Reagan Deputy Attorney General Arnold Burns wrote an incisive op-ed in The Wall Street Journal (March 23, 1998) in which he explains how federal prosecutors have far too much "by-the-book" powers. He spotlights the routine abuses of the forfeiture laws and the grand jury process as areas most in need of reform. Paul Craig Roberts, a nationally syndicated columnist, devoted his March 26 column to McDade's bill within the general context of run amok, run-of-the-mill federal prosecutors. Roberts also focuses on the need to reform the "tyrannical asset forfeiture laws."
Most Essential Reform: Restore Balance
to Adversarial System of Justice
The Founders understood when they wrote the Fifth Amendment right to due process and the Sixth Amendment right to counsel that the most essential, effective check against governmental overreach is a well-balanced adversarial system of criminal justice. They tried to ensure a fair contest between the government accuser and the citizen accused, by insisting upon a fair fight when the government is trying to take away a citizen's life, liberty or property. This constitutional insurance is now in arrears, and at risk of complete cancellation, due to consistent, chronic underfunding.But there is a growing appreciation for the fact that federal prosecutors wield more power over people's lives than ever before, and too often misuse that power with impunity. My testimony alone is not enough to turn this appreciation into results. Our task is communal. Every NACDL member must get involved, and step up the effort to communicate to Congress, and the American people, that the nation's most fundamental system for ensuring against governmental excess is on life-support, and in need of critical care.
Each and every one of us must tell our members of Congress, and local and national media communicating to the American people, what I told the House Appropriations Subcommittee on the Departments of Commerce, Justice and State, and the Judiciary:
Inform them of the oversight problems inhering in the almost overnight explosion in the number of Assistant U.S. Attorneys prosecuting Americans. There were 1200 AUSAs just a few years ago; now there are over 7000.
Let them know that, as a result of the incessant expansion in the numbers and powers of federal prosecutors, the federal courts' criminal caseloads are now at the highest levels since Prohibition.
Tell them that within this current system, 85 percent of citizens accused of wrongdoing by federal prosecutors cannot afford to hire their own, private lawyers to meet the challenge of federal charges. Therefore, most citizens accused are at the mercy of the system's promise of a court-appointed defender to help put the government to its proof.
Let your legislators and fellow Americans know that the private attorneys called upon to represent over 40 percent of court-appointed cases have been denied a cost-of-living increase originally approved by Congress through the Criminal Justice Act of 1986. Many cannot even cover their office overhead. Private attorneys in 77 of the 94 federal districts have been denied the basic rate increases provided by Congress in 1986, due to cancellation language in the Reports of the House and Senate Appropriations Committees.
Call upon your legislators and fellow Americans to join us in urging (1) that the rate increase cancellation language be omitted from the final Committee Report this year, and from now on; and (2) that the Defender Services Appropriation be funded at no less than $450 million dollars. This is needed to begin the system's recovery from so many years of imbalanced, inadequate defender services funding.
So, this is our work ahead, as the indigent defense spending issue winds through the Appropriations Committees of the House and Senate in the next few months. Fortunately, the political winds seem to actually be blowing in our direction. Carpe diem. Seize the day!