Washington, DC (February 4, 1999) -- America’s criminal justice system is beset with a fatal flaw: funding for the defense of the indigent accused is so woefully inadequate that the adversary system — indeed the justice system itself — is breaking down. As a result, justice has become an empty promise for all but the most wealthy in America.
In response, Larry S. Pozner, President of the National Association of Criminal Defense Lawyers, outlined a plan for redressing this assault on justice.
“Thirty-six years ago, in the landmark Gideon v. Wainwright ruling, the United States Supreme Court recognized the Sixth Amendment commandment that competent counsel must be provided for everyone accused of a crime. Over the next few weeks, and culminating with the 36th anniversary of Gideon, the National Association of Criminal Defense Lawyers, in concert with other groups and individuals increasingly concerned about this crisis, is initiating a series of reform recommendations aimed at addressing some of the most egregious examples of justice denied.”
- Prisons Packed With the Poor
Crime rates continue to decline, yet America’s jails and prisons proliferate, now housing over 1.8 million inmates — an incarceration rate many times greater than any other civilized country.
Public funding for America’s human warehouses — and for police and prosecutors — escalates every year, fed by lofty rhetoric by politicians about the “war on crime.” But resources necessary for the defense of poor people accused of crime (up to 90% of the cases) fall alarmingly below the minimum necessary for our adversary system to function properly. Despite the Sixth Amendment right to counsel mandated by the Supreme Court almost 36 years ago, poor people in America simply do not receive the competent representation enjoyed by people of means.
Every day, in courthouses across America, clients of overworked and underpaid defense lawyers — including public defenders with staggering caseloads — are shunted off to prisons. Without adequate funding for experts and investigation, defenders are no match for well-funded prosecutors. It should not be surprising then, that many of America’s prisoners — including some on death row — actually turn out to be innocent. Many more are grossly overcharged, serving lengthy sentences disproportionate to their past misdeeds and future dangerousness. Building more and more prisons and filling them with inadequately represented poor people is a national disgrace and must be reversed.
- Pennies for Defense
In Virginia, lawyers appointed in serious felony cases — with up to life in prison at stake — are paid not one cent more than $845, no matter how complex and time-consuming the case may be. With office overhead typically costing more than $50 per hour, the Virginia lawyer who spends the time necessary for a competent defense of an appointed client will quickly lose money. And in misdemeanor cases — with up to a year in jail at risk — the maximum pay for the appointed lawyer is $100 (total, not per hour). A recent effort to modestly raise the misdemeanor limit to $120 in 1999, supported by the Virginia Supreme Court, was deleted from the Governor’s budget — despite Virginia’s surplus of nearly $1 billion.
Other jurisdictions are similarly miserly in providing poor people with representation when the state seeks to their forfeit life and liberty. Oklahoma pays an average of less than $150 (down from $200 in 1995) — and as low as $85 — for noncapital representation. Alabama, Georgia, Kentucky, Tennessee and other Southern states average less than $300 per case; and the rest of the country is not much higher. Hundreds of death row inmates, notably in Texas and Florida, have no lawyer at all due to lack of funding. In Alabama and Iowa, the legislatures were recently persuaded to increase funding for defense, only to have incumbent governors veto the reforms. Elected leaders must appropriate adequate resources for the representation of poor defendants.
- Federal Funding
To her credit, Attorney General Janet Reno has publicly and repeatedly recognized the need for increased funding, resources and training for lawyers representing poor defendants. The FY 99 appropriation for the U.S. Department of Justice (totaling $18.2 billion) includes $552 million for the Byrne State and Local Law Enforcement Grant Program, which can include grants to defender programs if requested by states. Most states exclude defender programs from this growing source of supplemental funding — intended to support improvements in criminal justice systems, not just the police, prosecution and incarceration components. Reno is encouraging America’s governors, chief justices and bar presidents to take advantage of this federal resource in order to regain the balance needed for our adversary system to properly function. And later this month, DOJ will host a National Symposium on Indigent Defense — the first in 23 years — to emphasize the need for increased funding, and explore successful examples of cooperative planning that supports all essential criminal justice components. A system which fails to maintain equilibrium will topple. Governors and other state officials responsible for seeking and spending federal funds for criminal justice must include the essential defense function in their plans, if justice is to have any meaning at all for those who can least afford to defend themselves.
A lawsuit was filed in 1995 protesting inadequate funding in Connecticut, where public defender caseloads often exceed 1,000 per year. Since then, state funding for indigent defense has increased substantially, and Connecticut has become a model for including defender programs in federal grants to improve its criminal justice system.
In Pittsburgh, a grossly-inadequate public defender program will now double its staff — pursuant to the settlement of a lawsuit against the county.
Down in Georgia, recently-settled lawsuits against Fulton County and Sumter County have led to overdue reforms, including increased funding for defender programs. In a demonstration of responsible leadership, Georgia’s governor is proposing for FY 2000 a 58% increase in the budget of the Indigent Defense Council, which develops performance standards and subsidizes counties that meet them.
Mere talk of a lawsuit in Mississippi was stifled by passage of the Statewide Public Defender Act of 1998, creating a system charged to provide to poor defendants “competent, loyal and independent counsel.”
State-wide leaders must recognize and fulfill their duty to provide adequate funding to defend the accused poor. If they don’t, then litigation is an appropriate and essential remedy.
- Legal Ethics
Where lawyers are obliged to work for free — and even at a loss — and public defenders are assigned many times more cases than anyone can reasonably handle, the basic Rules of Professional Responsibility are inevitably being ignored . . . or violated. All lawyers are obliged to preform their professional duties with competence, diligence, and loyalty, and communicate effectively with clients. But the judicial and bar officials responsible for policing those requirements have dropped the ball when it comes to lawyers assigned to defend poor people whose lives and liberty the state seeks to forfeit. NACDL is engaged in a wide scale campaign to alert bar disciplinarians — and the public — to the ethical flaws inherent in systems that systemically shortchange the poor. One major facet of that problem is the growing trend toward low-bid contracts for defense services, wherein quality legal representation is sacrificed to short-sighted efforts aimed at incarcerating the highest number of citizens at the lowest possible cost. Under such plans questions of guilt or innocence become secondary to the process itself. People have a right to competent counsel, not just a “warm body.” When second class representation of poor people falls below professional standards, those responsible for enforcement must take prompt and forthright action to redress the problem.
Our detailed report, and strategies for disciplinary enforcement, are posted on the NACDL website at: http://www.nacdl.org/PUBLIC/defense.htm.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.