Report: Indigent Systems in Crisis

The Constitution Project has issued the most comprehensive report in 30 years on the constitutional right to counsel.

Excessive caseloads, inadequate funding, ethical breaches, politicization of the public defender system, lack of timely appointment of counsel or no appointment at all are depriving the poor of the constitutional right to representation in criminal and juvenile cases. This is the conclusion of a report released today by the Constitution Project’s bipartisan National Right to Counsel Committee. The report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, outlines the crisis in the country’s public defense system and offers 22 recommendations to state and federal officials to fix it.

The report includes recommendations for adequate funding, independent oversight, and standards for attorney competence, compensation, and workload.

A summary of findings is here, and the full report is downloadable here (pdf).

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    This has (none / 0) (#1)
    by Ga6thDem on Sun Apr 19, 2009 at 10:12:16 PM EST
    been a huge issue here in Ga. I wouldn't be surprised if our jails didn't have more people in them that didn't deserve to be there than any other state. The legislature here is pretty much a joke.

    FYI, former Gov. Roy Barnes has pretty much been using his stature to get the word out I understand. He may run for Governor again.

    One of the consequences (none / 0) (#2)
    by andgarden on Sun Apr 19, 2009 at 10:13:48 PM EST
    of having southern Republicans run your government. And there's not much you can do about it.

    Yeah (none / 0) (#3)
    by Ga6thDem on Sun Apr 19, 2009 at 10:17:07 PM EST
    these stupid fundamentalists we have running the government spent two weeks figuring out ways to ban stem cell research in the state while the economy is collapsing here. These people give everyone who lives in the south a bad name. Even many Republicans are sick of them.

    this is not the consequence (none / 0) (#4)
    by cpinva on Sun Apr 19, 2009 at 11:57:15 PM EST
    of benign neglect, it is the result of policy. the last thing the state wants is for poor people to have timely access to adequate and competent counsel. that would threaten to slow down the pace and certainty of outcome of prosecutions/incarcerations.

    otherwise, prosecutors and police would be forced to spend time actually doing their jobs, with more than the mimimally required level of fuss and bother. further, it would have the added, undesirable effect, of making it that much harder to browbeat/threaten indigents into false confessions and plea bargains.

    given the fairly low entrance requirements for most local poice forces, providing a decent quality defense could prove disasterous for law enforcement in almost any small town in america.

    In my view (none / 0) (#5)
    by Bemused on Mon Apr 20, 2009 at 07:24:04 AM EST
      one of the biggest problems is truly the misdirection of resources to trivial matters.

      More funding is needed but in many jurisdictions large amounts of money are required to staff PDs or appoint counsel to handle minor offenses that very rarely result in jail time as the sentence or which result in credit for time served sentences for those who could not make bail.

      A large amount of money could be saved -- and redirected to providing representation, and supporting other costs for people in dire need of effective representation --- by one relatively simple mechansism.

      Under the 6th Amendment indigent people are entitled to appointed counsel for any offense in which they are exposed to the potential of incarceration. counsel are routinely appointed in a large number of cases ultimately dismissed or resolved with a sentence of a small fine.

      If presiding judicial officers at initial appearances granted PR bonds for all misdemeanors unless the prosecution requested a property/cash bond and then the prosecutor was required to make a prompt election of whether to seek a sentence of incarceration, the jail population could be reduced and fewer appointments would be required.

      Only those cases  that the prosecutor elected to seek incarceration as a sentence and/or involving people incarcerated pending disposition would be entitled to appointed counsel. The money saved could be used to help pay for defense of more serious matters and jail costs would be reduced.

      Prosecutors would then also  be more  accountable as it would be relatively easy to track whether their decisions caused money to be spent unwisely pursuing incarceration in minor offenses. If the prosecutor elected to seek incarceration and/or opposed PR bonds in a large number of cases, peopl would see that and know where the money was going and why.

      In the cases where the person is released on a  PR bond and an election  not to seek incarceration was entered by the prosecutor, the defendants would not need to have counsel appointed. This would not "solve" the problems of underfunding but it would help.


    i see your point, (none / 0) (#6)
    by cpinva on Mon Apr 20, 2009 at 09:23:39 AM EST
    and raise you one. whether or not the prosecution elects to seek incarceration, a guilty verdict/plea bargain still results in a criminal record.

    criminal records make it all that much more difficult for indigents to become non-indigents; in effect, they're punished twice, once for the actual offense, then forever because they now have a criminal record to deal with.

    for other than minor traffic offenses, everyone should have competent counsel representing them.


    There are certainly (none / 0) (#7)
    by Bemused on Mon Apr 20, 2009 at 09:48:36 AM EST
    collateral consequences possible even with minor offenses.

      Providing every indigent defendant with counsel might be preferable, but we live in a world of finite resources and choices must be made. The 6th Amendment has not been interpreted to require counsel be appointed for people whose offenses though criminal do not carry potential incarceration penalties. I'm not aware of any court that has ever ruled that the the right to counsel, or more generaly due process, is triggered by the potential for collateral consequences resulting from private actors decisions. Collateral consequences involving governmental regulation might be a different story (e.g., firearm prohibitions in domestic violence misdemeanors or sex offender registry in sex crime misdemeanors), but I think it would be an improvement to allow for an election by the state to eliminate the possibility of ncarceration in other minor crimes, freeing up limited funds for use in cases where people face serious penal consequences. Is that a perfect solution? No, but sometimes we must choose between degrees of harm recognizing that the funds that will be available cannot do all things for all people.

      If, for example,  first offense shoplifters are not required to be provided with lawyers in jurisdictions where that is not a jailable offense what is the real difference between not providing one for a person accused of some minor offense such as disorderly conduct or trespass where in the same jurisdiction the statute creates a jail penalty that is almost never imposed any way, if the state elects to eliminate the possibility of jail. Both the shoplifter and the trespasser might get a misdemeanor conviction and either might cause some person to hold that against him or her.


    rereading that (none / 0) (#8)
    by Bemused on Mon Apr 20, 2009 at 09:51:41 AM EST
      it is confusing.

     "Due process" is always a right in any criminal matter. I meant that I am not aware of any court that has held that the due process clause requires appointment of an attorney where no jail is possible in an analysis apart from the right to counsel under the 6th amendment or state constitution corollary.