A full half-century after the Gideon v. Wainright decision from the U.S. Supreme Court holding that indigent people accused of crimes are entitled to taxpayer-funded attorneys for their defense, the system still isn't working, says the American Bar Association. Clarence Earl Gideon was a homeless drifter in his 50's accused of breaking into a pool hall. He was convicted without an attorney and sent to prison. He appealed.
In its Gideon decision, the justices unanimously overruled a 1942 case, Betts v. Brady, and held that the Sixth Amendment’s guarantee of counsel was a fundamental right made applicable to the states through the 14th Amendment. Justice Hugo L. Black wrote for the court that it was an “obvious truth” that a fair trial for an indigent defendant could not be guaranteed without the assistance of counsel. The “noble ideal” that every defendant “stands equal before the law … cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him,” Black wrote.
It always sounds wonderful when people promise other people stuff for free. It is the foundation of modern politics. The problem, though, is that it rarely works:
A year ago, addressing the American Bar Association’s National Summit on Indigent Defense, U.S. Attorney General Eric H. Holder Jr. said that across the country, “public defender offices and other indigent defense providers are underfunded and understaffed. Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight.”
In short, Holder said, “the basic rights guaranteed under Gideon have yet to be fully realized.”
There you have it: United States Attorney General Eric Holder speaking fast and furiously about how people who rely on public defenders get a level of service that is "less effective" because of "insufficient resources, overwhelming caseloads and inadequate oversight." But Holder isn't the only person who knows it:
Daniel T. Goyette, the chief public defender for Jefferson County in Kentucky, and a member of the ABA’s Standing Committee on Legal Aid and Indigent Defendants, says that “despite some genuine efforts and notable advances, the criminal justice system and, more pointedly, the leadership of our executive, legislative and judicial branches of government—both state and federal —have largely failed to carry out the constitutional mandate of the Gideon decision.”
He adds: “Sadly, it has not been a priority, and we are constantly taking one step forward and two steps back.”
This isn't a new problem:
A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.
That report shouldn't have shocked anyone, because public opinion polls from years earlier already showed that Most Would Not Trust A Public Defender. But that was in 2004. Surely the problem was solved, right? Think again:
Fast-forward to 2009, and a report of the National Right to Counsel Committee and the Constitution Project found little progress. Despite an overall increase in funding, “inadequate financial support continues to be the single greatest obstacle to delivering ‘competent’ and ‘diligent’ defense representation,” said the report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (PDF).
The most visible sign of such inadequate funding is public defenders with “astonishingly large caseloads,” sometimes more than 100 clients per lawyer at a time. Such lawyers cannot interview their clients properly, file the appropriate motions, investigate their cases, responsibly negotiate with prosecutors, or perform other tasks.
Never a group to pass up a chance at publicity, the ACLU has their own project outlining the failings of the public defender system in their "Unfulfilled at 50" project.
The real goal of all this public criticism is to generate more money from politicians for public defenders, but I think this theme that "public defenders don't do a good job because they don't get enough taxpayer dollars" does more harm than good, because it also means that until there is a vast increase in taxpayer dollars for attorneys to defend the accused, public defenders will continue to do a poor job.
In Georgia, most counties are part of the statewide public defender system. A few places, like Gwinnett County, Cobb County, Cherokee County and a few others fund their own systems that are independent of the statewide system. I think clients get more attention in the independent systems, but those systems and the lawyers who work within them are still economically limited in what they can do for their clients. Even in those counties, my advice to someone facing criminal charges would still be to hire your own attorney.
With the United States Attorney General, the National Right to Counsel Committee, the American Civil Liberties Union, and the American Bar Association all going on record describing public defenders as underfunded, understaffed, less effective, having insufficient resources, overwhelming caseloads and inadequate oversight, the answer to the question of Should I Hire A Criminal Defense Attorney? should be more crystal clear than ever: YES.
UPDATE: This isn't a slap at the dedication of the individual lawyers who work in PD offices. This is a criticism of the highest levels who use these overworked lawyers as hostages to extort more money from taxpayers instead of advocating for stricter limits on who qualifies for a PD.
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