The New York Law Journal highlights the report of the The Constitution Project’s National Right to Counsel Committee, which has taken a bold stand, and one that I’ve promoted numerous times, in urging public defenders to refuse to compromise their professional responsibilities by acquiescing to taking on more cases than they can competently handle.
Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.
When indigent defense systems require attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.
You betcha! The promise of Gideon v, Wainwright doesn’t fall solely on the shoulders of the defense bar, which unfortunately lacks any voice in the legislative halls because our associations are unduly focused on which potential recipient of some “champion of justice award” will bring in the most cash and carry tables to remember why they exist.
In a terrific and very thorough post, Gideon at A Public Defender provides far more depth on the report, which covers far more than just the limited portion I discuss here.
But as much time as I’ve spent promoting the elevation of duty over numbers, the Blind Guy pointed out to me this morning that there remains a bit of a gap that shouldn’t be forgotten.
The right to have counsel appointed has one very real, very serious condition: That the defendant cannot afford counsel. In many places, this condition is so ridiculously low that anyone with a 1987 Pinto is considered too rich for a lawyer. But in other places, say like New York, a person with a house and a job paying $75,000 a year can have a public defender for the asking. Essentially, there are no qualifications (or review of qualifications) at all.
I support Gideon with all my heart and soul. I appreciate the working poor, and their need for a free defense, particularly in light of the cost of a private defense. I’m with you, my brothers.
But you, who can very well afford to retain private counsel but choose not to? Sorry, pal, but society doesn’t owe you a free ride.
To the extent that the edge of need is subject to debate, it’s a debate the should be had and the line determined. But while public defenders are overworked, overburdened, underfunded and at the cusp of professional irresponsibility, the people who take a free lawyer when they have the capability to hire their own are not only stealing from the mouths of every taxpayer, but from the mouths of those truly deserving of Gideon’s aid. When a poor defendant is denied counsel because a sufficiently well-to-do defendant has taken up the last spot, Gideon has been turned on its head. This isn’t right.
Some may challenge this assertion by contending that the cost of a private defense will place a hardship on many defendants who, by the numbers, can afford counsel on their own. This is where the rubber meets the road. Indeed it will, but who promised every member of this society that they can have a defense in court without suffering any hardship?
There are financial burdens that are inherent in our criminal justice system, and somebody has to suffer them. At one point, they were solely on the shoulders of defendants, who could hire counsel at their own expense or suffer the consequences. That wasn’t an adequate solution. But the alternative, that society finance defendants who can afford counsel at the expense of the taxpayer and those who truly cannot, is similarly unacceptable.
So let me add one caveat to the call to arms by the Right to Counsel Committee: Before you starting turning away the indigent, be sure you’ve weeded out the free-riders who have the ability to pay for their own defense, even if it means they have to do without cable TV or a mocha latte at Starbucks. The Constitution promises a right to counsel, but not a pain free ride.