Amongst the many press release emails that I regularly find in my box is one from the Center for Independent Media, Since no such thing exists, and somebody thought it wise to send it to me, I assumed that it’s more preaching to the choir. I guess nobody told them that I can’t sing worth a lick. Most of the PRs don’t make it past a quick glance, but when I saw one about fighting life sentences for children, I took a look. As regular readers know, I have a particular soft spot for children, and strongly disagree with their being treated as adults and relegated to the human junk heap.
The PR linked to a post by Eartha Jane Melzer at the Michigan Messenger, relating that a bill to end life without parole sentences for kids languished in the state Senate judiciary committee. The post goes on to note that Michigan’s high rate of juvenile LWOP sentences is a product of inadequate defense funding.
Young Defendants Often Lack Adequate DefenseWhen juveniles are facing charges that carry a life sentence, they are especially dependent on legal counsel in a state that has one of the most under-funded public defender systems in the country. A recent report by the National Legal Aid and Defender Association done in cooperation with the State Bar of Michigan found that the lack of state funding, standards and oversight leads to inadequate public defense locally where counties often lack the resources to provide adequate support for those who can’t afford an attorney.
Because young people are especially dependent on counsel to represent their interests, the failure of the state to provide adequate resources for public defense hits youth especially hard. According to the American Civil Liberties Union of Michigan, 78 percent of juveniles sentenced to life without parole relied on appointed counsel.
Coalition for Justice, an alliance of legal and human rights groups concerned about inequities in the state justice system, together with the ACLU of Michigan is suing the state for failing to ensure equal access to representation in Michigan. The group point out that in Berrien County, for example, the prosecution receives four times as much funding as the defense.
Clearly, the 4 to 1 funding disparity signals a major problem, though it still needs to take into account the fact that some juvenile defendants are privately defended, and the prosecution handles cases and investigations that might never make it into the system, thus not requiring an equivalent response from an indigent defender. Still, the disparity is far greater than can be rationally justified.
But I am deeply troubled by the assertion that this is only a money issue, and that funding is the solution to all problems. Just as teachers unions constantly argue that lack of money is the root of our children’s poor educational performance, yet end up post-contract negotiations with better paid incompetent teachers, the quality of representation is not cash-dependent.
There is no macroeconomic issues in a courtroom. There’s only a lawyer and a defendant, in these cases a child defendant. It doesn’t matter how many files a public defender has; he only stands up for one person at a time. Melzer provides an anecdote to make her case:
[Scott] Elliot [a member of the Coalition for Justice’s public defense task force] has closely followed the case of Efren Paredes, a 15-year old Latino honor student who in 1989 became Michigan’s first juvenile to receive the life-without-parole sentence after being convicted of murder and robbery. Paredes, who has now served 20 years in prison, maintains that he is innocent.
Elliot said stereotypes and cultural bias were an important factor in Paredes conviction. A notebook with lyrics from rap group N.W.A.’s double platinum selling “Straight Outta Compton” album was found in Paredes’ locker at school.Despite the fact that Paredes was a good student and had no criminal record, the prosecutor, who assumed that the lyrics were written by Paredes himself, Elliot said, introduced them as a “window into his mind” and tried to characterize him as a dangerous gang member.
Try as hard as I might, I find no connection between Efren Paredes’ conviction and lack of funding. Had he not been represented for lack of an available public defender, that would be one thing, though it’s hard to conceive of a juvenile accused of murder being left out in the cold when it comes to representation. These are the cases that suck the resources out of the everyday, mundane ones, which often get short shrift.
Every criminal defense lawyer, whether private, public or somewhere in between, takes on a personal duty to provide each and every defendant with zealous representation. When you hit the wall, have too many files in the bag to fulfill this duty, then you have another duty: Stop taking cases. As Our Lady of Abstinence told us, “Just say no.”
That the state has failed to provide sufficient funds to hire sufficient lawyers to defend all those bad boys and girls they keep arresting presents one side of the problem. That lawyers who undertake the responsibility of defending those bad boys and girls fail to provide effective representation is another. The former doesn’t dictate the latter. Only the lawyer can make the decision to personally fail.
Before anyone starts whining about how I don’t understand, let me assure you I do. You are told to handle a certain number of cases. You can’t spend the time to meet with clients, read documents, research issues, investigate facts, prepare, THINK, when you have too many cases on your desk. What are you supposed to do, just leave the kids without lawyers at all? A little representation is better than none at all.
Well, no. It’s a cop out, an excuse, a rationalization. As lawyers, we are each solely responsible for our representation, no matter who hands us a paycheck. Your boss told you to do it? If this is enough justification for you, you are in the wrong line of work. Next, bad representation is not better than none. Bad representation is what fills prisons with innocent kids. No representation places the burden exactly where it belongs, on the state. They can’t prosecute people who do not have counsel because the state refuses to spend the money necessary to have enough indigent defenders available. The only to pull that off is to have an enabler at the defense table to give the appearance of representation when there is in fact none. You enable the state to neglect its responsibility by failing to perform yours.
While Melzer is no doubt right that funding presents a constant struggle for indigent defense, including the representation of those disposable kids who get LWOP, no fair argument exists that ignores the duty of lawyers to defend their clients. If no one wants to be a public defender under these circumstances, then let’s shut the whole damn system down. But to facilitate a system that does this to children, and then deny ones complicity in the fiasco, is nonsense. No amount of money is going to save children when their lawyers fail to do their job. Even if it means that the lawyers have to take their own heat for standing up for the right thing.
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I know some of the local-to-me CIM folks, and like them, although I’m not always sure that the affection is returned, ever since, in an allusion to their funding, I referred to our local branch as being, rather than a fountain of light, a “fountain of Soros.”
And I woulda thought that they were Jackson Browne fans. Go know.
Digression aside, and more seriously, I think I have enough of a sense of how bureaucracies work to figure out what’s likely to happen if some J. Random PD, Esq. says, “Hey, I’ve got a full caseload, and I can’t give good, zealous representation to another client.” He/she gets canned or otherwise disciplined, and somebody else handles the case.
But what happens if, say, hereabouts (I know you’ve got a different system there), the Chief Public Defender instructs his attorneys that they’re simply not to take any more cases unless they can actually do their jobs for the new clients, what would happen?
(It’s not like nobody’s noticed here; see http://www.startribune.com/local/south/42060622.html.) Even Jim Backstrom — the Dakota County Attorney — has noticed it, although he seems to see it primarily as an inconvenience to the prosecutors and judges.)
While it would be optimal if the big guys stood up and took a stand against their funding masters, I refuse to buy into the “but I’ll lose my job” whine. These are lawyers, not assembly line workers. Worst still, these are criminal defense lawyers, not wussie desk jockey lawyers. Fighting is what they do. The Nuremburg defense doesn’t fly with me, and the duty they have is theirs, not their employers. That’s what it means to be a professional.
Now, about this I can haz gun permit? dotcom, isn’t this pushing the cultural cutting edge just a bit too far?
I’m not either buying it nor not buying it, he said, bravely refusing to take a position.
As to the funding issue, I was talking about that to my friend Theo, who hails from Theory, a country with a legal system that seems to be much like ours. In Theory, the defense doesn’t generally need to invest as much time and effort as the prosecution, because the prosecution has to prove each and every element of the charged offense to secure a conviction, while the defense only need create reasonable doubt about one element to secure an acquittal; it’s an easier thing to do, Theo says, and it works real well, in Theory.
As to the other thing, well, “oops,” he explained. (I grabbed the wrong autocomplete. Firefox’s autocomplete, like most things, as a wise man of my acquaintance would say, isn’t idiotproof, as idiots are too ingenious. It’s a parody of http://plaincents.net . Which is only a parody in the “unwitting” and “self” sorts. But I digress, as shocking as that is to contemplate.)
Argh. It’s a parody of http://planecents.net, dammit. I try to avoid being a self-parody, and sometimes even succeed. Sometimes.
It isn’t just the funding disparity between prosecutors and PDs, it is the fact that the prosecutor has the police and crime labs and the PDs have nothing. That makes for an even greater disparity.
But I think you are right – what needs to happen is a fight – if attys refused to take cases they couldn’t put the time in for, the state would be forced to deal with the issue rather than have the appearance of propriety by a warm body in a suit that puts face time in for sentencing.
Many, many moons ago when I was in the Coast Guard, I remember a line from my XO to a towboat captain who was complaining that he had no choice but to take the boat out in an unsafe condition for fear of being fired. The XOs response was clear and to the point.
“Would you rather be fired WITH your license, or WITHOUT it?”
The problem with your “if no one wants to be a PD under these circumstances” solution is that plenty of people will want to be, just not the right ones.
Some representation from ME is better than any representation by a lot of other lawyers, so I do the best I can with what I have, and wish that I had more.
And you know what the problem with THAT argument is, particularly since you would never sacrifice a child at the alter of indigent defense funding. They can’t all be you.