It seems impossible to a New York criminal defense lawyer that this could happen, as there is a law, CPL §180.80, that requires a defendant arrested for a felony to either be indicted, given a probable cause hearing or released within 120 (which ends up being 144, because the Legislature forgot about weekends) hours of arraignment.  Is there nothing similar in Mississippi?

Octavious Burks has been in the Scott County Jail since Nov. 18, 2013. Joshua Bassett has been there since Jan. 16, 2014.

A grand jury has yet to indict either man.

They are far from alone. In jails across the state, some are held behind bars more than a year without ever being indicted.

“This is another poor man’s curse in Mississippi,” said J. Cliff Johnson, director of the MacArthur Justice Center at the University of Mississippi School of Law. “It sounds like something that happens in a Third World country.”

This bizarre situation is exacerbated by the fact that Mississippi has no statewide public defender system, and lawyers for indigent defendants aren’t appointed until a defendant is arraigned on an indictment.

On Tuesday, the American Civil Liberties Union of Mississippi and the MacArthur Justice Center filed a class-action lawsuit on behalf of these men against Scott County officials, saying the men have been “indefinitely denied counsel.”

It sounds more as if they have been indefinitely detained, as they are arrested, held and forgotten.

The lawsuit points out that because the state of Mississippi doesn’t impose a limit on how long a district attorney has to present a case to the grand jury or how long a defendant may be held in jail without indictment, a defendant can be held in jail indefinitely.

While the lack of providing counsel upon initial arraignment, where bail is set, certainly is a significant part of this problem, it’s unclear how Mississippi’s system comports with a number of other issues of constitutional magnitude.  What about speedy trial?  What about the right to present a defense, as the ability of a defendant to investigate, obtain evidence, is lost during that first year or two in jail awaiting indictment.

Radley Balko points out that Mississippi isn’t exactly at the cutting edge of concerning itself with the defendant’s constitutional rights.

I’ve spent a lot of time reporting in Mississippi over the years. To my knowledge, all Mississippi counties and most of the larger towns do have someone designated as the “public defender.” The problem is that in all but a few places, the job is only part time. In some areas it pays just [a] few thousand dollars per year. So most of the state’s public defenders earn their living in private practice. You can imagine how that might affect the quality of the representation they provide. I should also add that I’ve met a few dedicated and terrific public defenders in the state. They do exist here and there, but they exist in spite of the system, not because of it.

An obvious problem is the plague of Gideon throughout the nation, that it’s expensive to provide counsel to indigent defendants and it’s money that never served to get a politician elected to office.  Sure, it’s expensive to warehouse presumptively innocent people indefinitely as well, but inexplicably, people don’t seem to mind paying for prisons nearly as much.

But this doesn’t seem to be solely a right to counsel problem.  Where are the criminal procedure laws that make the indefinite detention of pre-indictment defendants impossible?  Where is the system that compels a prosecutor to indict or release?  How is it possible that a guy can be tossed in jail and forgotten?

“They go to jail,” she said. “They lose their jobs.”

At the end of nine months or a year when the defendant is finally indicted, “he says to his lawyer, ‘I just want to get out,'” she said. “There is tremendous coercion to plead guilty to just get out of jail. You can’t blame them.”

Clearly, a system that can leave a defendant in jail before any opportunity to challenge his arrest serves to punish first, convict later. In the scheme of a defendant’s best interests, many will seize the opportunity to plead guilty to some variation of time served just to get out.  The prosecutor scores another win and society is safe, even though the impetus to plead guilty has nothing to do with guilt, but with the fact that the defendant will never get back those months, years, in jail, and risking even more imprisonment is nuts.

As Cliff Johnson of the MacArthur Justice Center says, it sounds like some third world country. That country would be ours. How is it possible that even in the most rural county of the most backward state can there be a system where no safeguards exist so that a person isn’t held indefinitely pre-indictment, pre-trial, without counsel?

Attorney General Eric Holder gave a speech at NYU Law School’s Brennan Center:

“This is nothing less than historic,” said Attorney General Holder. “Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus – a consensus driven not by political ideology, but by the promising work that’s underway – we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues.”

While these statistics show progress at the federal level, there is similar progress at the state level.

Not in Mississippi, apparently.  Have you been there?  Perhaps the AG needs to get out of Washington, D.C., and New York for that matter, and take a trip to Mississippi to see just how his historic reforms are working out on the state level.  Or does the situation of Octavious Burks and Joshua Bassett not align with the great success in achieving a better functioning criminal justice system, and best be forgotten lest they screw up the otherwise warm and fuzzy rhetoric?