Yes! But That’s Not the Whole Story

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.

12 comments on “Yes! But That’s Not the Whole Story

  1. John Kindley

    Here’s an idea: for people who are arguably not indigent but also cannot really afford private counsel, the state facilitates a “guaranteed defendant loan” to pay for such representation, secured by whatever assets the defendant might have. If the defendant is acquitted, the state forgives the loan (the least they can do). That should motivate prosecutorial discretion in the right direction. Come to think of it, such a system might be better for the truly indigent as well.

  2. SHG

    While the idea has some merit, it might also give the government a say in how much private lawyers should charge for their services, how much time they can put into their work and how much overhead they are allowed to carry, since they are fronting the fees to pay for all of the above.  Then there’s the question of where the money would come from, but that’s too nitty gritty at the idea stage.

    Of course, my concern was less on those who are “arguably” not indigent, but rather clearly not indigent but still enjoy sucking on the public teet for their free defense lawyer.

  3. John Kindley

    I had in mind as a model student loans guaranteed by the government. As I understand it (though I don’t understand it very well), the amount of these loans doesn’t depend on the expense and quality of the education the student chooses to undertake. The student is still expected to come up with some of the resources on his own, particularly if he or she is pursuing a “cadillac” education.

    In the criminal defense context, such a loan could be used to cover completely the fees of a lower-priced lawyer of the defendant’s choice, or merely to defray the costs of a higher-priced lawyer of the defendant’s choice.

    Many criminal defense lawyers charge flat fees, so keying the amount of the loan to the gravity of the charge (and with whether representation goes beyond the plea bargain stage) might be a reasonable solution in line with common practice. The amount of the loan could be raised upon petition to the court in unusually complex cases.

    Whether the defendant is rich or not, I still like the idea of the government having to pay for a successful defense (i.e. that amount which would be considered the bare minimum for competent representation by some lawyer somewhere). Some criminal defendants want to know if they can sue the government for false imprisonment or malicious prosecution if they are acquitted. The answer of course is generally no, but perhaps at least the government could be required to pay the monetary costs the defendant incurred in defending himself.

    As for where the money would come from, it seems some of it could come from the money now being paid for the public defender system. It’s also a question of government spending priorities. For me (and I know for you) the presumption of innocence is an extremely high priority. In principle, innocent defendants whose innocence is vindicated after trial or appeal should not be forced to pay for defending themselves against charges initiated and prosecuted by the government. I’d be more than fine with government reimbursing defendants for its mistakes in criminal prosecutions and the funds for such reimbursement being diverted from all the other wasteful and counterproductive things government now forces taxpayers to pay for.

  4. Blind Guy

    Nassau County, west of New York City and on Long Island, used to have a formal screening process to determine if a defendant was indigent. Unfortunately, the administrator was convicted of demanding sex for a favorable report of indigency. For the most part screening is now done by judges in an abysmal fashion as the judges are much more interested in moving their calendars and then determining if someone really qualifies for a free lawyer.

    In New York City the legal aid Society whispers that they take on too many cases than sign a contract with the city that requires them to take 87% of the cases that come through arraignment. In New York City, in addition to the legal aid Society every borough has another defender office that is publicly financed to also take on representation of the poor.

    Ever wonder why the private criminal bar is shrinking?

  5. Gideon

    On the flip side you have the people who really make next to nothing, but are on the wrong side of the stingy income guidelines. Those are the ones I feel bad about.

  6. melisa l. rockhill

    What’s sad is that CJA attorneys just received their first “raise” in a decade to the $110 range I think it was? I’ve been billing more than that the last 10 years writing briefs! CJA lawyers and Public Defenders are unsung heroes all too often abused by the legal system, second only to the Gideons. How can we help the Gideons, though, when we won’t help CJA lawyers and public defenders? Talk about a group of people that really needs lattes.

  7. SHG

    CJA lawyers aren’t the unsung heroes of anything.  They do a job and get paid for it.  Nothing more.

  8. Mark Bennett

    Why should an innocent person — or a presumptively innocent person — have to spend his own wealth to defend himself against the government?

    Here’s a wacky socialist utopian idea: if a society wants its government to put people in boxes for the society’s benefit, then that society should be prepared to bear the full cost of the effort, including — if due process is among the society’s values — the cost of due process.

  9. Lee

    Couldn’t reallt reply last night because I was in bed next to my sleeping wife.

    Here’s the problem I have: in my jurisdiction, the average quality of representation from the public defender is light years better than that from the affordably priced private attorney.

    In your scenario, Scott, the poor person gets shitty cheap representation while the indigent person gets fantastic reputation.

    I agree with Bennett. If the state wants to charge people with crimes and incarcerate them and that system only works where there is a fair and balanced adversarial system at work, the state should pay for that. If someone chooses to go outside that system and hire a private attorney, that’s their choice.

  10. melisa l. rockhill

    Missed your reply until now, but you make a good point. Maybe $110/hour covers firm overhead and then some for federal trials lasting 3 weeks to 3 months for the kind of lawyers capable of handling those cases. I just never never saw the books where the firm didn’t ultimately underwrite a CJA case.

  11. SHG

    Melissa,

    No one forces anyone to take a CJA case.  If it’s not financially viable, then they don’t have to do it.  My experience is that CJA lawyers fight for their cases, as it’s a good, steady income to fill up the time left by lack of retained clients or offers lawyers the opportunity to get into court that they would otherwise never get at a larger firm.  Both of these benefit the lawyer, and influences the lawyer to seek the work.  And if it wasn’t in their interest to take CJA cases, they don’t have to do it.  Mind you, for many CJA lawyers, they have no retained work and this is their sole source of revenue, an even worse state of affairs.

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