A group of prominent public figures have penned a letter to the Justice Department urging it to provide better support to public defenders.
Concerned about the number of poor criminal defendants in the U.S. who do not have access to a lawyer, many prominent members of the legal community have pressured the Justice Department to do more to protect Americans’ Sixth Amendment right.
Earlier this year, former Alabama Supreme Court Justice Sue Bell Cobb, former U.S. Vice President Walter Mondale, New York indigent legal services director William Leahy, and Equal Justice Initiative Director Bryan Stevenson wrote a letter to the Justice Department sharing their concerns about defendants not being able to obtain legal counsel in many parts of the U.S.
“The right to counsel is a precious right that goes to the core of who we are as a people,” the letter said.
Additionally, public defenders in 47 states have sent letters to Attorney General Eric Holder, asking him to urge the Justice Department to take a broader role when it comes to the American justice system.
Holder has not responded, at least publicly, but he has made several speeches recently on taking steps to reduce the prison populations by not arresting non-violent drug offenders and releasing sick and elderly inmates under the compassionate release program.
In response to the issue, Rep. Ted Dutch (D-Fla.) is reportedly planning introduce legislation that would create a national nonprofit group that would financially support and train public defenders throughout the U.S.
Many lawyers and activists agree money is the solution to the problem and said the Justice Department should not spend any more time studying or debating the issue.
“We believe it is time to stop studying these problems and to do something about them,” wrote the group, which also includes Stephen Bright of the Southern Center for Human Rights, David Bruck of the Washington and Lee University School of Law, Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund and Virginia Sloan of the Constitution Project.
“Whatever resources the federal government is willing to commit to the right to counsel for poor people accused of crimes should be immediately spent funding people and programs working in states and communities where there is the greatest need to make Gideon a reality,” they added.
The right to legal counsel regardless of one’s ability to afford an attorney was granted on March 18, 1963, when the Supreme Court ruled that Clarence Gideon’s constitutional rights were violated when he was denied an attorney in a 1961 trial. Gideon was convicted of stealing wine and change from a vending machine in the early 1960s and was sentenced to five years in prison.
Though he only had an eighth grade education, Gideon wrote a letter to the U.S. Supreme Court asking for a new trial, saying that he didn’t need a law degree to understand that his rights had been violated when he was not given legal counsel at his trial even after asking for it.
“I thought actually that was a law,” he said. “I thought that was a constitutional right and didn’t know no different. And a man with money can hire a lawyer to represent him. He’d get a better chance in a trial than I would get without an attorney. To me, that was just common sense.”
The Supreme Court agreed and ruled Gideon should have a re-trial because his request for legal counsel had been denied. In his second trial it only took the jury about an hour before they ruled that Gideon was innocent.
But many who find themselves in the court system — many of whom are charged with minor offenses — are being told that because of a shortage of staff lawyers due to heavy caseloads and budget cuts, they won’t be appointed a public defender.
Revamp and refund public defender program
Currently about 80 percent of all accused people enlist the services of a public defender.
The public defender office in Wilkes-Barre, Penn. alone handles about 4,000 cases a year despite having only four investigators and four secretaries on staff. In Pennsylvania’s Luzerne County, the public defender’s office had to turn away more than 500 people seeking legal counsel after the program’s $2.7 million budget was cut by 7 percent.
The Luzerne County office doesn’t receive any money from the state, so the cuts meant the county would not able to hire five additional lawyers to help with the heavy caseload as planned. But about six months after the cuts were made to the program, a judge intervened in order to ensure that defendants’ constitutional rights were not being violated en masse.
David Carroll is the executive director of the Sixth Amendment Foundation. He says the problem is that “the most prevalent form of right to counsel services in America is for an attorney to handle an unlimited number of cases for a single flat fee under contract to a judge or county manager.”
But, Carroll said, “this model produces a financial conflict of interest in which the less amount of resources or effort the attorney puts into the case, the more he puts in his own pocket. And, judges often appoint only those attorneys who contribute to their political reelection campaigns. Over 64% of counties (1,900 of 3,033) in the U.S. operate under this model.”
Toby Marcovich is an attorney in Wisconsin who has worked as a public defender. He said that before the Gideon v. Wainwright ruling, private attorneys were already assigned too many cases but the introduction of the public defenders system made the caseload for many overwhelming.
Still, Marcovich says he thought it was important that such a system existed.
“Even as a prosecutor I felt that it was important for defendants to have their rights preserved,” he said. “There was some bad stuff going on, on occasions: people actually being deprived of rights, given bad information, sometimes maybe deliberately.”
Last year the Missouri Supreme Court responded to the legal counsel crisis by ruling that public defenders can decline new cases. In response, the American Bar Association responded by urging states and counties that enact similar policies to not fire public defenders who turn down a client.
But rulings like this are concerning for some, such as Liz Fasse, who works as counsel for the criminal justice program at The Constitution Project. She said that a courtroom is already an intimidating place for a person, legal expertise aside, since the state has many more resources for information than a member of the general public.
“As state and federal government face budget cuts and are cutting back on indigent defense funding, Gideon should remind us that this isn’t a budgetary line item,” Fasse said. “This is a Constitutional right that everyone has.”
Fasse says that the absence of legal counsel before the Gideon ruling meant that many people were found guilty of crimes they didn’t commit and expressed concern that the same could happen now if defendants are denied legal counsel on a large scale.
“Unfortunately, we don’t know how much injustice was done,” she says. “According to the National Registry of Exonerations, we now are at over 1,200 individuals who have been exonerated for crimes they did not commit. Unfortunately, that’s probably just the tip of the iceberg.”
All of the stress is getting to public defenders as well. When Ed Olexa was working as a part-time public defender, he says he had 150 to 170 cases to work on, which forced him to work 40 to 50 hours a week.
Olexa says there were numerous occasions where he was scheduled to appear before two or three different judges at the same time, and he often was not able to meet with a client until they were in the courtroom. “It offended my sense of justice,” he said, explaining that he never had time to establish a rapport with clients or examine details of a case to see if he could win an acquittal.
Though Olexa didn’t share any specifics regarding complaints made against him by his clients, he said that even “the best attorney in the world would be incompetent under those circumstances.”
According to experts, the strain on the system will likely result in more poor people being arrested for misdemeanors just opting to plead guilty so they can carry on with their life and not get in the long line to have a public defender represent them, even though a conviction could hurt their chances of obtaining employment, loans and housing.