6th Amendment Fire Sale

Two independent posts, one from Grits for Breakfast and another from Sentencing Law and Policy, contribute pieces to a glaring problem, exacerbated by an economy that has caused us to rethink just about everything. 

Scott Henson wrote about how the cost of a public defender system, representing indigent defendants, was substantially less than the cost of having private lawyers provide indigent defense, and how a bunch of “rookie judges” in Dallas started assigning cases away from the PD because they were less inclined to be the “plea mill” the judges were seeking.

This paragraph in Scott’s post stood out:

In 2005 according to these data, the attorney cost per felony case at the public defender office was $303.04 per case, compared with $544.62 per case for private attorneys handling indigent clients. For misdemeanors, the average cost per case at the PD office was a paltry $65.86 in 2005 compared with $118.94 for private counsel.

Scott was looking at the numbers for the purpose of comparison; obviously, the cost of using the PD to represent indigent defendants is lower, and as pointed out elsewhere in his post, “PD lawyers in recent years have more frequently taken cases to trial and spent more time securing services and shepherding mentally ill clients through the system, the Dallas News reported.”  Better and less expensive is a very good combination.

Doug Berman posts:

From ABC News come this interesting article, headlined “Facing ‘Crisis,’ Public Defenders May Refuse Cases — Constitutional Dilemma: ‘Severe’ Budget Cuts Could Force Public Defenders to Turn Away Thousands of Poor Defendants.”  Here is how the article starts:

Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants.

The combination of declining economy (meaning, a lot more people without the funds to defend themselves), a public defender system that is being crushed under the weight of needy defendants for lack of budget and staffing, and a per case fee structure that is insufficient to buy a Vente Mocha Latte at Starbucks.

Ladies and gentlemen, we have a 6th Amendment disaster on our hands. 

Whereas Scott notes that the PD can defend for less than private indigent defenders, just take a look at the numbers:  At the top, $544.62 per felony.  Let me not mince words.  That does not pay for much lawyering, even if we were to assume the lawyers to be competent, interested and dedicated.  Think about it this way, exactly how much lawyer time does this amount of money buy?  At fire sale rates of, say $100 an hour, it gets you nearly 5 1/2 hours.  If it were your life on the line, would you be satisfied?

And I take no issue with Scott’s premise that the PD can do better for less; I’ve seen it, much as my brethren in the New York 18b bar will argue that they do a wonderful job for as long as anyone cares to listen.  In my view, private indigent defense is a spotty proposition at best.  Extremely spotty.

Even at a cost that suggests the barest of minimal attention, it was not sufficient to fulfill the obligation to provide a criminal defense to the many poor who need it and, per Gideon, have a right to it.  If this was bad before, it’s about to explode given our current economic circumstances. 

While bad defense lawyering leaves judges and criminal defense lawyers shaking their heads in disgust, the line is drawn at no defense lawyering.  Defendants unable to retain counsel must be provided a lawyer.  Without one, cases cannot be prosecuted.  They will sit in judicial limbo, whether it means leaving violent criminals out on the street for lack of the ability to bring a prosecution to fruition, or leaving innocent defendants in jail awaiting the availability of a lawyer to stand up for them.  Either way, it’s a disaster.

But with the crushing costs of gasoline and food pressing down on the social consciousness of good citizens everywhere, combined with unemployment and ever-increasing tax burdens to pay for critically important things like war in Iraq to prevent the imminent threat of weapons of mass destruction depose a tyrant bring freedom to Iraqi’s who will welcome us as saviors enable us to leave Iraq as winners, who can afford the additional burden of financing the prosecution of such heinous criminals as prostitute solicitors and drivers failing to yield.

While the Supremes are busy deciding cases that will mean nothing for anyone wearing an orange jumpsuit in the heat of a Cuban summer, we have some mundane but pressing issues to deal with down in the trenches.  I wonder if the court on high can see that far below them to realize that the 6th Amendment is about to go on sale.  Do they know who will pay the Bill of Rights?  I do.

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