23
Feb
16

public defenders

The other day, I ran across a statistic that was presented as if it were new news, but really isn’t new news at all. The factoid has been in circulation at least since 2006, maybe before.

I think today I will re-publish an article discussing the issue, just to drive home the point:

Public Defenders handle 80% of all felony cases.

It helps explain how the “War on Crime” is so often described by critics as a “War on Poor People.”

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43334962_125606344691Clarence Earl Gideon, whose Supreme Court case established the right to counsel for indigent defendants, was buried in an unmarked grave in Hannibal, Mo. The ACLU later donated the tombstone.

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The Right to Counsel: Badly Battered at 50

by Lincoln Caplan, The New York Times

March 9, 2013

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest—at arraignments that averaged less than three minutes.

The Supreme Court has said that poor people are entitled to counsel “within a reasonable time” after a case is initiated. But defendants, after their arrest, can spend weeks or even months in jail without a lawyer’s help. In a Mississippi case, a woman charged with shoplifting sat in jail for 11 months before a lawyer was appointed.

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades. They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains—often because of weak defense lawyers who fail to push back.

The competency of lawyers is, of course, most critical in death penalty cases. In dozens of states, capital cases are routinely handled by poorly paid, inexperienced lawyers. And yet, only very rarely are inmates ever granted a new trial because of incompetent counsel.

In a Georgia death penalty case last year, the United States Court of Appeals for the 11th Circuit ruled that even though the main defense lawyer drank a quart of vodka each night of the trial, there was no need for a retrial. The lawyer was himself preparing to be criminally prosecuted for stealing client funds, and presented very little evidence about the defendant’s intellectual disability. But the court said the defendant had a fair trial because proof that he killed a sheriff’s deputy outweighed any weakness in his legal representation.

In an infamous 1996 Texas death-penalty case, the Texas Court of Criminal Appeals upheld a defendant’s death sentence even though his lead counsel slept during the trial.

The Supreme Court has made it possible for courts to uphold such indefensible lawyering. In 1984, in Strickland v. Washington, the court said that for a defendant to be entitled to a new trial, he must show both that his lawyer’s advice was deficient and that the deficiency deprived him of a fair trial—a very high hurdle. And the court’s majority defined competency as requiring only that the lawyer’s judgment be “reasonable under prevailing professional norms.”

Justice Thurgood Marshall, writing in dissent, said the result of this empty standard “is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.” That is exactly what has happened in the past three decades. In fact, incompetent counsel for poor defendants is so widespread that under this standard the prevailing professional norm has been reduced to mediocrity.

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of The Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases.

There is no shortage of lawyers to do this work. What stands in the way is an undemocratic, deep-seated lack of political will.

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Lincoln Caplan is the Truman Capote Visiting Lecturer in Law at Yale Law School. With a B.A. and a J.D. from Harvard, Caplan has been a journalist with and contributor to, among others, the New Yorker, the New York Times, and U.S. News and World Report.

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Groove of the Day

Listen to Louisiana Red performing “I’m Too Poor to Die”

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2 Responses to “public defenders”


  1. 1 Frank Manning
    February 23, 2016 at 11:25 pm

    Almost all the kids I have worked with at the reform school have been represented by public defenders. Even here in Washington State, with its relatively progressive juvenile justice system, the public defender offices operate at the county and city level. Most of the lawyers are young, inexperienced, underpaid, and overworked, with impossibly huge case loads. Consistent reports from many kids over the years tell the same story. The attorneys do not really attempt to defend their clients. Instead, they try to wrangle the best possible plea deals from the courts and move each case as quickly as possible to its inevitable conclusion, with the child convicted and sentenced, regardless of actual guilt or innocence. “Best possible” here means from the standpoint of the system, not the best interest of the accused. For all their immaturity and lack of education and positive life experiences, the kids are well aware of the dismal reality of being represented by a public defender. They actually refer to their legal counsel as “the public pretender”. That in itself is the most damning indictment of the system here in Washington.

  2. 2 Erik Roth
    February 27, 2016 at 12:23 am

    What Frank Manning has submitted here I confirm from hard personal experience is exactly true.
    Public defenders do not defend at all, and so the public be damned.
    That they may be overworked and underpaid is beside the point.
    Fact is, the poor do not have any real legal defense whatsoever.
    Moreover, the entire judicial system in Amerika is a contemptible sham.
    Thus, everything this pompous country presumes to stand for is a lie.
    Martin Luther King, Jr., famously paraphrased Theodore Parker in saying:
    “The moral arc of history is long, but it bends toward justice.”
    If that proves so, then Amerika (spelling it like it is) will get what it deserves.
    Unless and until anyone personally suffers from encountering that corrupt system, recognition and admittance of it will be denied. The truth is too hard to face, let alone admit, and never mind try to address.
    Way too many people are willfully ignorant and cowardly unwilling to confront and correct the problem.
    “Home of the brave” ?
    Not on your life.


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