Accusation Without Representation
If you are going to be arrested and charged with a crime, better here than in, say, Lithuania or Bulgaria, perhaps, where in 1999, 20% and 40% of their prisoners, respectively, had been convicted at trial without representation by an attorney.
Perhaps. But occasionally our criminal justice system in parts of the United States do not look so dissimilar. For instance, in mid April, state judge Arthur Hunter Jr. in New Orleans suspended the prosecution and ordered the release of 42 defendants because none were represented by counsel. The judge stopped short of dismissing the charges but delayed prosecution until each defendant could be guaranteed his constitutional rights under the Sixth Amendment (the Sixth Amendment states, in part, that "in all criminal prosecutions, the accused shall enjoy ... the Assistance of Counsel for his defense.") Yesterday, Judge Hunter again halted the prosecutions of another 98 defendants out of concern that they will not receive representation. Most of the defendants are charged with drug-related offenses.
In issuing his order, Judge Hunter stated, "It's not inadequate representation in these cases, it's no representation." As Justice Sutherland stated in Powell v. Alabama in 1932, "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." In Gideon v. Wainwright in 1963, the Supreme Court held that that anyone accused in state court of a felony is entitled to a lawyer.
That the frustrated actions of Judge Hunter separate our system of justice from those of certain Eastern European countries should give us little comfort (since Bulgaria has set the bar pretty low). Instead, we should be concerned that any poor citizens of this country, at any point, are being arrested, detained, and charged without a lawyer. No one should be deprived of his or her liberty without representation.
And the issue does not stop at mere representation. The majority of public defender systems in this country are overwhelmed with cases and underwhelmed with funds. New Orleans may be in a uniquely desperate situation post-Katrina, but the state of indigent defense around the country is unnecessarily and unacceptably dire.
When I left my job as a public defender, I had over 100 active cases, and my caseload was the norm for my office. In fact, my colleagues with 130 cases each looked at my caseload with envy! It is extremely difficult, if not impossible, for one lawyer to provide adequate representation to 100 people or more simultaneously.
As the Court stated in Gideon, "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime."
The very least, then, we should do, is allocate sufficient resources to ensure that each person facing that well-funded "machinery" of the state have legal representation. Our state and federal government have a constitutional and ethical obligation to guarantee everyone access to a competent lawyer. Anything short of this would be an abridgement of fundamental safeguards of our liberty.