The New York Times has published this editorial about the public defender funding crisis. The editorial comes on the heels of this story that we highlighted on the blog a couple of weeks ago.
It's nice to see the issue getting some high profile media attention, but I fear that the problem will only get resolved if public defenders stop taking cases that they don't have enough time or resources to handle ethically. Unless the system comes to a halt, it seems unlikely to me that state legislatures will make this issue a priority.
The problem is, not defending people *doesn't* break the system. Defendants just end up convicted unjustly, and society has shown itself to be willing to tolerate that result.
It's really only if judges refuse to convict unrepresented defendants that a true wrench will be thrown into the works. And it'll have to be the judges on their own initiative, because it's probably not going to be a lay-defendent who will be able to raise the issue on their own behalf (that's why they need the lawyers in the first place...)
Posted by: Cathy | November 24, 2008 at 02:41 PM
It is nice to see the NYT give the issue some ink, but I'm concerned by the suggestion that it is the responsibility of lawyers to fund public defense programs through higher license fees. Just because public defense involves the criminal justice system doesn't mean it's the lawyers who should be funding it! Why on Earth isn't this an issue for general tax dollars? Do we place a higher burden on teachers' licenses for tuition shortfalls or require police officers to pay higher taxes when the price of gas for their cruisers goes up?
Posted by: Jed | November 24, 2008 at 04:08 PM
Regarding Cathy's point, if lawyers refuse to take the cases, defendants won't be wrongly convicted. As a matter of constitutional law, they'd have to be released, because there are no lawyers to represent them. That's what started to happen in Massachusetts a few years ago, and it led to additional funding for criminal defense representation.
Regarding Jed's question, the argument is that the state grants lawyers a monopoly to practice law (through unauthorized practice statutes) and that, in exchange for this monopoly, lawyers can be expected to give back some of their profits that are directly attributable to this monopoly.
In particular, the unauthorized practice statutes in most states are interpreted to be much broader than is necessary to protect the public. Indeed, scholarship has been fairly uniform on this particular point. If lawyers get the benefit of this unnecessarily broad monopoly (and the higher fees and income that come along with it), I think they have a special obligation to bear more of the burden when it comes to ensuring that people who can't afford a lawyer get access to proper representation.
That's not in any way to say that the state shouldn't provide more funding for indigent representation. But if the state fails to do so (and it will undoubtedly continue to fail to do so in this economic climate), I don't think it's unfair to ask lawyers to do a bit more, given the unnecessarily broad protection that lawyers typically receive.
Posted by: Andrew Perlman | November 24, 2008 at 05:06 PM
Cathy, It is a problem that if public defenders don't defend people, those people might well spend time in jail for lengthy periods waiting for lawyers, until, as Andy says, judges feel forced to free them. But, when that happens, the system does finally come to be viewed as "broken" and legislatures act to do something about inadequate representation.
However, you're wrong to talk about people being convicted unjustly if PDs refuse to represent them. In fact, the majority of indigent defendants are convicted without due process and without effective assistance of counsel even though PDs are providing the system with the false appearance of "representing" them.
The problem, ever since Gideon, is that PDs have been providing a mockery of just convictions, when, in fact, they are engaged in triage, and most of their clients are unjustly convicted by inadequately counseled plea bargains.
Every PD who maintains an overload is violating her ethical obligation to give unconflicted, competent representation, and is violating her constitutional obligation of effective assistance of counsel. And she is also engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation by knowingly giving the false appearance that the defendant has had effective assistance. That's what has served to maintain a cruel charade of "just convictions," and it's time for it to stop.
Posted by: Monroe Freedman | November 25, 2008 at 08:57 AM
I'm not sure we're in disagreement - constitutionally people shouldn't be convicted without effective assistance of counsel at all, and yet there's plenty of crummy precedents to show they often are.
My comment was more about where in the process things might finally "break." I don't think that happens immediately upon PDs turning down the cases (although perhaps that's the first step needed, especially if they can do it en mass). Since I don't tend to think prosecutors would suddenly stop prosecuting (although perhaps I'm wrong about that?), that just leaves the judges to toss the cases.
So, will they? Does it vary from state to state or jurisdiction to jurisdiction whether or not they are more inclined to? Massachusetts may have worked through the problem, but has New York? California? Georgia?
Posted by: Cathy | November 25, 2008 at 11:55 AM
Constitutionally, a judge doesn't have a choice. A defendant can't take a plea or be tried without an attorney, so I think PDs' refusal to take the cases would force the issue.
Posted by: Andrew Perlman | November 25, 2008 at 12:03 PM