The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The scope of the final clause was the subject of argument fifty years ago today, and the Supreme Court ultimately held that no person should be denied the assistance of counsel for his defense because he could not afford a lawyer.
It was heady stuff, given that there was no argument about whether his lawyer had to be awake during the entire trial. As has become common in such big decisions, the enormity of the creation of a fundamental right gets whittled down to its lowest common denominator as time goes on until the giant oak returns to being an acorn. What begins its life as “fundamental safeguards of liberty” are eventually reduced to expensive technicalities provided the undeserving.
But Gideon’s promise was based on dubious premise, as stated by Justice Hugo Black:
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.See what he did there? In 1963, Justice Black took for granted that “defendants who have the money hire lawyers to defend” them. It’s unclear whether this assumption has dissipated with time, or this was just the view from on high, but Eric Mayer at the Unwashed Advocate provides the conclusive list of where a lawyer fits in the scheme of relative worth today. Legal representation falls a mere seven spots behind a Papa John’s large, one-topping pizza, and one spot ahead of education.
When Gideon was decided, the Court declined (neglected?) to provide a dividing line between those defendants who were indigent, and therefore entitled to be provided counsel, and those who simply preferred to allocate resources to a new iPhone. To a Supreme Court justice, it likely didn’t seem worthy of the effort, since only a fool would fail to hire a lawyer to defend him if he could.
Have we become a nation of fools? While Eric’s list is funny, the satire strikes home because it uses humor to make a point that’s too real. The need to defend against criminal accusations isn’t worth much these days. It may be that defendants no longer believe that spending money on a criminal defense lawyer is a good investment, as the power of the prosecution is so overwhelming that they will lose no matter what. It may be that defendants no longer trust that it’s money well-spent, as lawyers will no longer fight long and hard, but instead will pocket their hard-earned dough and plead them out at the first opportunity.
There is a long list of pretty solid reasons why people no longer value a criminal defense lawyer.
The argument in favor is vague and rhetorical; it relies entirely on trust, as there is neither a guarantee nor a way to test whether the outcome was worth the cost.
One of the pieces of the puzzle of the legal profession’s downward spiral is our inability to satisfy the unmet need of society for legal representation. The characterization is that people cannot afford lawyers. It’s an overbroad description. There are certainly indigent defendants who cannot afford counsel. For some strange reason, the people who wind up as criminal defendants often fit the bill of poor.
But there are also people who fall into the netherworld of people who can afford a lawyer, in the true meaning of the word afford, but choose to allocate their scared resources otherwise. Some argue the Utopian view that all criminal defendants should be given a free lawyer, which carries so many flaws that it’s not worthy of serious discussion. Some argue that a particular dividing line could be fixed, where the decision not to mortgage the family farm precludes society’s largesse.
Yet few give much thought to how Justice Black’s assumption has proven so wrong. Are people so enamored of their shiny things that they can’t bear to part with them for the assistance of counsel in their defense? Is the system so overwhelmingly one-sided that no defense, no matter what the cost, is worth it? Has the rhetoric of lawyers become so empty and meaningless that criminal defendants aren’t fooled into thinking that we bring any value to their case?
In a mere 50 years, we have managed to reduce a basic belief that was so important to liberty that it was included in the Sixth Amendment to the United States Constitution to a choice between carton of Marlboro’s and legal representation. It’s not enough to celebrate the anniversary of oral argument in Gideon v. Wainwright, where poor Clarence Earl Gideon was afforded the fundamental right to the assistance of counsel in his defense, if we give no thought to what we’ve done to it since.
We may not be able to alter the perception, if not the reality, that the government possess overwhelming might in the prosecution of criminal offenses, but we surely can change what we do to make our existence valuable enough to the accused that they find us a more worthy expense than a new pair of basketball shoes.
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I know at least one local lawyer who makes paying for the pizza a better choice. You get the same quality of representation and get a fine pie, to boot.
I’ll bet you know a guy or two like that, too.
Sure I know a few. And I know a few whose value has yet to be determined, but their self-assessment on the internet is that they’re totally awesome, dude. And I know a few who were going to take the legal world by storm, and five years later are mostly worried about how long it will take for their vouchers to be paid. So, yeah, I know a few.
The criminal caseloads are so large that the justice process looks like “son of stopgap” to me.
I know people who say “If you are going to get hammered anyway why spend the extra money?”
OTOH why make the prosecutions job easier by surrendering without fighting?
I think we have reached the stage where the penalties for some offenses are so harsh that there is no trial penalty and no reason to plea bargain.
That’s a more complicated decision than it appears on its surface. The penalties are harsh, and at the beginning, the different between 20 and 25 years seems miniscule. But at year 17 of a sentence, the difference between imminent possible release and another six years looms much larger. While the harshness of penalties certainly makes pleas less desirable, it’s worth remembering that the lawyer goes home to his family after a verdict of guilty but the defendant does not.
When we have reached that decision point it is usually because of a long series of bad choices.
Another possible reason for the dearth of legal representation: the perception that ‘lawyers are for the rich’. If you’re making a comfortable 6+ figure salary, maybe you can afford representation. If you’re lucky enough to work at a job which provides legal insurance, then you can afford an attorney. Other than that… Well, yeah, there are all those guys who advertise ‘affordable legal counsel’. There are also all those guys who advertise ‘affordable cars: no one turned down!’ The perception is that in both cases, you’re getting what you pay for, and at least the car can become a decorative lawn ornament.
The common perception is that anyone who isn’t indigent, will be once he’s paid his lawyer.
For serious offenses – those that carry 20+ year sentences – how many iphones does that defense cost?
For someone making $50k/year, a cost / benefit analysis will likely show three things: Without a lawyer, he can lose his case and go to jail for 20 years. With a lawyer, he can win his case and be indentured for the rest of his life paying off that debt. Or with a lawyer, he can lose his case, go to jail for 15 years, and then upon release be indentured for the rest of his life.
Indentured for the rest of his life is a bit hyperbolic, but the cost of a lawyer will surely be a huge hit to most ordinary folks. And so they would rather do 20 and save whatever they have then fight.
I think your assumptions about cost are fairly common. What do you think the average range for the defense of a serious offense is? Not the best lawyers, perhaps, but not losers either. Solid, smart, hard-working lawyers.
I should have clarified that isn’t how I look at the cost of CDL representation but that it is my perception of others perceptions.
In TX, the concealed handgun license instructors tell their classes that if you shoot an intruder in your house in the middle of the night, even if he has a rap sheet a mile long, be prepared to spend $10k on a lawyer.
My thoughts on what the average range are for a serious offense are that they’ll start around $20k and go upwards of several hundreds of thousands. I imagine there are way too many variables to give a more exact figure but if I had to guess, the average cost for defense for a murder one charge is between $50 and $70k.
Speaking from the experience of a friend (whose sister got nabbed as part of a major felony drug bust), the initial cost was $20,000. Now, it spared her a felony conviction, which would make the expense worth it; but imagine a similar charge to a family who makes 30k a year. Such an upfront cost would be daunting (to say the least). Could they pay it? Maybe, with an indulgent bank; but they’re risking the loss of home and health. At this point, a harsh cost assessment comes; is our relative worth that risk?
My general impression (in our area) is that a capable attorney would be $250-$500 an hour, with several hundred billable hours for a serious case.
I promise to give you my thoughts, but I would like to hear what others think as well, so I’m going to hold off for a bit. Plus, I’m doing a survey on twitter as I type.
I been thinking about this issue for years. The career criminal in my state usually takes a PD. Felony representation from an experienced lawyer can range from $7500 to 25K + expert and investigator fees. We all know NG verdicts are rare – the public knows it, also, however, every now and then a Casey Anthony or an O.J. gets a pass and relights that spark of hope that there might be a chance with a good lawyer.
One of the biggest problems criminal lawyers face is that families don’t budget for the possibility that they may need a criminal lawyer. They buy a house and the costs show up in the closing costs; someone trips on their sidewalk their homeowner’s policy will defend them; they get sued at work and their company will defend them. In summary, the average potential consumer doesn’t see a foreseeable need for us and therefore doesn’t prepare for it. I know there’s insurance available but in 23 years, I’ve never had a call from a prospect who was covered.
For the big bucks, families need to look to getting from a relative, their church or from the equity in their homes. Of course, with the recent housing market crisis, there isn’t any equity any more in those houses and if there was the banks are now requiring stricter requirements to get a loan – therefore, is it any wonder that the public are passing more and more on hiring private lawyers? I’m not convinced it’s because they don’t see the value rather I suspect it may also be that they are finding it more and more difficult to marshal the assets to afford one. Here in California the crime rate remains fairly constant, criminal lawyers are suffering while the PD’s are swamped.
That was Eric’s point, that people manage to somehow find money to get the things they want. They just don’t want lawyers as much as they want other things.
It’s rare for criminal defense lawyers to charge by the hour, because if they don’t get paid up front, they don’t get paid. Is it hard for someone who makes $30k a year to pay $20k to defend? Sure. In your friend’s case, it saved a conviction. Is it hard for someone to do 10-20 years? Sure. And they won’t make any money during that period either.
But what about the family that earns $50k, or $75k? Even $100k? Same or different equation? These are the middle class who say they can’t afford a lawyer.
But aside from people engaging in an illegal business (say, drug dealers) who could possibly foresee the future need for a criminal defense lawyer?
Which essentially changes it from an affordability problem to a foreseeability problem. At the same time, it means that the public is left to finance the cost of the defense of middle class folk who could afford to pay for their own defense but for their failure to save money or plan ahead.
Okay, having conducted a highly scientific empirical survey of criminal defense costs for a competent, experienced lawyer, including trial, for serious state court felonies, the average legal fee range is $25-35,000.
It’s not that there aren’t lawyers who charge in the hundreds of thousand for trials, and particularly lawyers in federal court, complex cases, wiretaps, white collar. So you have bottom feeders who charge a pittance and you get what you pay for. A corp of competent, if not spectacular, lawyers who charge a moderate fee, and a smaller group of lawyers who charge far higher fees.
So in the vast majority of state court trials, the fees are substantially less than people imagine, mostly because they have to be since there aren’t enough defendants who can pay huge fees to keep the bulk of the criminal defense bar alive.
Wow. That’s considerably less than I thought. I asked some of my colleagues (all engineers and very bright) and they were thinking $100,000 minimum.
I know that it shouldn’t have any bearing on it but that bit of knowledge will help me sleep better at night.
There are certainly good lawyers who get (and are worth) $100k (and more). But that’s more or less the norm. I figured you would be shocked.
I’ll add in another trade secret. The “upfront” part of the fee covers most of the work. The trial portion may be additional, but if the client can’t pay it, that doesn’t mean the lawyer is off the hook. The lawyer is obligated to continue representation until relieved by the court, and if the case is trial ready, many judges refuse to let a lawyer out even if he hasn’t been paid. And some lawyer will not seek to get out even though they get stiffed on the trial fee, considering it a matter of personal obligation to complete the trial.
Clients regularly commit to a retainer that includes fees they are later unable to pay. Happens all the time to lawyers. Good lawyers may get angry at the clients, but still do their duty to zealously defend them. That said, it is definitely in the client’s interest to fulfill his obligations under the retainer by paying the trial fee, just as the client expects the lawyer to fulfill his.
This is good information because I think most people think the fees would be several times your estimate.
The loss of income while in prison is huge by comparison and the collateral damage to their family such as lost educational opportunities for children or siblings can’t be quantified.
Exactly. Even so, it’s not inexpensive, but it isn’t anywhere near as bad as some would imagine.
My employer offers legal insurance as an employee benefit. Why didn’t I buy it? From everything I read on this specific policy, the plan, not the client, chooses the lawyer. Maybe the lawyer would do a great job, or maybe not. Also, it wasn’t completely clear that what would be covered would be helpful.
I doubt most people think they would ever be charged with a crime, particularly a felony. Actuarially speaking, what are the odds of being charged with a felony versus, say, the odds of a serious house fire? My Google abilities failed me on that one.
While I’m no fan of legal insurance, you bring up a really interesting question:
I don’t know, but now that you ask it, I wish I did.
A quick look suggests that your chances of being charged with a felony (more than a million) are larger than you chances of having your house catch fire (370,00).
However your chances of being convicted and sent to prison are much smaller.
Can you break that out a bit more clearly?
“The median household income in the United States is $46,326. Here in California people have a hard time understanding that yes, 50 percent of our population live on $46,000 or less a year. Even today, all the elixirs and remedies being thrown around fail to focus on income and the big brother of income, solid employment. Dual earner households have a higher median income at $67,348.”
This, perhaps, provides some more food for thought. Yes, it’s hard to see a family member sent up for 10-20; but if they’re not a wage-earner, you have to weigh the risks to everyone to save one person. (In my anecdotal example, the person had a family support net that could, with some effort, pay the up-front fee.) I’m not disputing the fairness of the fee; rather, I’m observing that for many people, life’s realities preclude such a payment. (That’s leaving aside the problem that you can indebt yourself, and still end up with a negative result; not a comforting outcome, and one that can lead people to conclude that the fee is a gamble that isn’t worth taking.)
I don’t pretend to know what the answer might be; but for many Americans, ‘counsel of choice’ is an empty phrase.
Yeah, it’s tough. And some of them are lawyers. And every time a person is given a free lawyer, everyone pays for their defense, which is fine if they are indigent, but less so when the same person making the same income has to pay because they have chosen not to “risk” their money on themself or a family member.
It’s one thing to ask a poor person to contribute via his taxes to pay for someone who is indigent. It’s another to ask that same poor person to pay so that another person doesn’t have to make his own sacrifices. A lot of tough issues.
The Justice Dept. does a biannual court survey of the 70 largest counties and the number of felonies is about 424,000 for a combined population of 113.4 million. For that sample the probability of a felony charge is about 0.4%.
In 2011 US fire departments responded to 370,000 house fires on a per capita basis the probability is 0.1% but on a household basis it would be about the same as the probability of being charged with a felony.
The big surprise to me was that the probability of being convicted and sent to prison was 0.1%. I was under the impression that it was much lower. Reporters and others use jail and prisons as synonyms (technically correct) and that may be part of the problem.
My guess is the number of felony charges for the entire US is about a million.
The problem appears to be that while the likelihood of going to prison in comparable, the likelihood of being charged with a felony is significantly greater. Since no one knows what their outcome will be, it seems to me that people should be more prepared to deal with a felony arrest than a fire.
But Joe and Jane Murrikan don’t commit felonies, so they’re not going to be worried about needing a lawyer. At least, they won’t until some hotshot prosecutor decides that something they did fits some obscure statute that nobody knows about.
Using your figures being prepared is the ability to come up with $30,000 that you can repay even if you are sent to prison for ten or more years.
Most people I know will refuse to believe that they will ever go to prison and that they have no need to prepare. $30,000 would be a big hurdle for those that do think they need to be prepared.
This may not be on topic but there is penalty enhancement caused by inflation. I don’t know what it is like in NY but in Iowa the dollar thresholds for property crimes were established so long ago that what was intended to be a misdemeanor is now a felony. The threshold need to be multiplied by 1.5 to restore what the legislature intended.
Yes, that may not be on topic.
Here in Arkansas when they did away with the Grand Jury as a necessary step in the process the justice became a commercial commodity. The State has an almost infinite power to prosecute and elected officials love to abuse that power for personal or party political gain. Nothing new or special to Arkansas or the US. Civil service systems that shield fire and police from the forces of greed and corruption have been around for a long time.
Professional prosecuting attorney have not. And there in lies the problem. When it becomes someones “Job to find – or make Violators of the Law”, deterring crime and providing justice to the real victims of crime moves down on the list of department priority.
Then when you fill the law books with rules and regulations whose alleged purpose is to protect fools from their own stupidity. Try seatbelt laws on for size and add Mr I am No Tricky Dick’s “War on Drugs” we end up with more prisons and none violent Playmate Coloring book “offenders” in over crowded third world prisons than the entire rest of the Civilized world put together.
Besides what would we do with all those unemployed criminal injustice lawyers, police and prison guard industry. There just aren’t enough vacant postal carrier jobs to take up the slack.