Accusation Without Representation

Ezekiel Edwards

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.

Ezekiel Edwards: Author Bio | Other Posts
Posted at 9:14 AM, May 08, 2007 in Criminal Justice
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Comments

While the fact about Lithuania is indeed true, you'll find that it is in line with EU standards, which in many cases is certainly better than present US "standards".
While the US may offer public defenders, it would be interesting to note how oftne this is the equivalent of no representation at all.

Mike,

On the one hand, as a former public defender, I am quick to note that there are hundreds of public defender lawyers around the country doing top-notch work and providing excellent representation. Organizations like the Bronx Defenders (http://www.bronxdefenders.org), with its emphasis on wholistic representation, and the Public Defender Service of D.C., to name a few, are examples of strong public defender offices staffed by dedicated attorneys.

On the other hand, in many states, public defender offices are woefully underfunded, its lawyers are in dire need of more and better training, and its caseloads are staggering. Some states do not even have a public defender system (such as Alabama). For a good overview of the various public defender structures in place in the United States, go to the Constitution Project's webpage on right to counsel: http://www.constitutionproject.org/righttocounsel/resources.cfm?categoryId=6.

As the Project states, "Though devolution of state obligations to local government can lead to innovation, this has proven not to be the case with indigent defense services. Rather, the states' abdication of their constitutional obligation has produced a myriad of indigent defense systems that vary greatly in defining who qualifies for services and the competency of the services rendered. Documentation of the failure of states that do not fund at least 75 percent of indigent defense services grows with each passing day."

Often the worst representation comes not from the public defenders, but from court-appointed private lawyers who either have no background or experience in criminal law or who devote their time to their private clients to the detriment of their indigent clients.

Combine this with public defenders' unmanageable caseloads, dearth of money and training, and, in some instances, the apathy or cynicism of its individual attorneys (which is also evident among some private attorneys), many poor people in this country are not receiving adequate representation or, whether literally or figuratively, no representation at all.

I agree wholeheartedly with the argument in this article. Fair representation within the legal system for people of all classes and means should be a no-brainer. After all, surely the constitution was not meant to protect only the rights of those who could afford the most expensive legal representation. This is an issue that should get more attention than it generally does, and I'm glad to see the topic addressed on the DMI blog.

I also believe that the problem is not unique to criminal law, even if that is the area in which the disparity is most visible. A recent op-ed in the New York Times by David Schizer draws attention to how the wealthy have been able to profit from the IRS' understaffed and overworked team of tax attorneys ' largely at the expense of the middle and lower classes. The longer the government continues to under-pay and under-staff its legal teams (in all fields), the less meaningful the protections guaranteed in U.S. Constitution will become.

David Schizer's article can be found at: http://www.nytimes.com/2007/04/16/opinion/16schizer.html?ex=1334376000&en=4da76bde10e0c48e&ei=5124&partner=permalink&exprod=permalink