Even among advocates of criminal justice reform, most (ourselves included) tend to focus on the draconian punishments that await the convicted–when in practice, it is the trial process that finishes off the accused, who is sold down the river after going through a mockery of justice. The crisis in defense of the indigent informs much of the work of the Southern Center for Human Rights, a leading advocate for the rights of prisoners and of the accused, which deals with what is effectively a caste system within our criminal justice establishment, where one kind of justice is offered to the wealthy and another kind to poor. This inequality may be nothing new, but the structures designed to mitigate it–the system by which lawyers are appointed to defendants who cannot afford them–is reaching new lows.
Earlier this month, a Georgia Superior Court Judge, ruling in a case brought by the Southern Center for Human Rights, wrote: “The Georgia indigent defense system is broken. It is a mega-bureaucracy adrift with no rudder. No business, nonprofit organization or government agency could survive under the present scheme.” Judge J. David Roper wrote earlier this signed a consent order to provide better legal representation to the poor in Georgia’s Northern Judicial Circuit. According to the Atlanta Journal-Constitution:
Among other things, [the order] calls for the state public defender agency to provide counsel in the Northern circuit within 24 hours after a defendant is found to be indigent. It also sets case load limits for lawyers and monitoring of their performance.
A lawsuit, one of a number slapped on the state public defender agency, was filed last year on behalf of Northern circuit defendants. It said funding problems that have plagued the agency for years had eroded its ability to provide prompt representation for the poor…
In 2008, defendants sat in jail for prolonged periods because there were no lawyers to represent them at bond hearings, according to testimony at a hearing in March. Sometimes indigent defendants appeared at their criminal arraignments without representation, almost shutting down criminal prosecutions.
This case, dealing with one rural judicial circuit in one state, highlights what is merely a somewhat extreme version of a nationwide problem. In June, the American Constitution Society, at its annual convention, presented a panel discussion on “the federal role in improving indigent criminal defense.” The panel included Steve Bright, who heads the Southern Center for Human Rights and has spent his life representing the interests of poor prisoners in the South, along with Laurence Tribe, the Constitutional scholar from Harvard Law School who is now working within the Justice Department to improve legal representation for the poor, along with several others. A link to the video of the panel is here, while An American Constitution Society Issue Brief proposing federal action to reform indigent defense can be found here.
Bright painted a dismal picture of the judicial system: “There is no advocate system in many parts of this country,’’ he said. Most of the cases involving indigent defense are in the state system, where the accused are dependent on the government– the same government which is trying to put them in jail. There are few public defenders and they receive scant funding; in Miami, for example, prosecutors get $4.3 million a year as opposed to $150,000 for public defense. The loyalty of the lawyers tends to be to the judge, not the client, since lawyers literally cannot afford to alienate the judge. There is often “no chance to raise a defense,’’ Bright said. “The cases are rigged like professional wrestling matches.’’
During the 1960s, the Justice Department was known for its support of civil rights movement, and the federal courts were seen as sanctuaries for the victims of state injustice. That is no longer true today. The 1960s was also the last time—and probably the only time—anyone in this country spoke seriously of providing widespread, accessible defense services to the poor. This happened as part of Lyndon Johnson’s anti-poverty program, with the creation of the neighborhood legal defense teams to give people in localities advocates for all sorts of problems with landlords, police, government bureaucracy. It was in Chicago, Obama’s home town, where Saul Alinsky fought Mayor Richard Daley tooth and nail in an effort to make the new poverty program work. At that time, the lawyers were paid by the federal government to represent the poor. After Johnson, Republicans successfully ripped these programs to pieces.They became principal targets in the right wingers’s defunding campaign. Now nobody talks about them; instead of financing any defense, the government literally seeks to privatize defense advocacy by recruiting well-heeled law firms to do their part pro bono.