In a New York Times op-ed, Fordham prawf John Pfaff shows yet again that he’s good with numbers.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.

Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

When you step back from local indigent defense spending, this is what it looks like. Sure, some want to tell you about the faces of the innocent individuals sitting in cells for months awaiting a lawyer, but those stories only sway the deeply empathetic.* The system has no feelings. The system has balance sheets and ledgers, which ultimately spew out the amount left over that can be used to buy constituent happiness, campaign donations and re-election.

The situation in South Dakota highlights the insanity of this. South Dakota charges a defendant $92 an hour for his public defender, owed no matter the outcome of the case. If a public defender spends 10 hours proving that her client is innocent, the defendant still owes the lawyer $920, even though he committed no crime and his arrest was a mistake.

Failure to pay is a crime. Someone who qualifies as indigent may be acquitted, only to be convicted of being too poor to pay for the legal services the Constitution requires the state to provide.

This is not justice.

He had me until that last line, as “justice” is one of those words taken seriously only by academics and people without any power to do anything about it. The number crunchers couldn’t care less, and the lawmakers’ “justice” is what appeals most to those whose appreciation they need most.

The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense. This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget. This money would triple spending on indigent defense, especially if the grant was tied to pre-existing spending by local governments so they couldn’t just cut their own spending one-for-one with the grant.

The problem isn’t that they couldn’t do it, but that the 0.3% needed to fund indigent defense is 0.3% less to spend elsewhere.  That may not seem like much when reflected as a percentage of a $1.2 trillion discretionary budget, but it’s plenty when the cost is congressional failure to fund a bridge to nowhere in a district where a congressman needs to get re-elected.

Expecting Congress to provide funding for indigent defense because what we’re doing now isn’t “justice,” in the grand sense, and is batshit crazy in the South Dakota sense, ignores the problem that the folks who have the capacity to fix the problem lack the motivation.  Does anyone care?

OVER the past year, everyone from the conservative Right on Crime project to the Black Lives Matter movement has pushed criminal justice reform to the forefront of political debates. Yet politicians at every level of government remain almost completely silent about one of the biggest crises facing criminal justice: the utter collapse of indigent defense.

The conservative reform movement is focused on incarceration, where the cost of warehousing exceeds its benefit by decades. The Black Lives Matter movement has forsaken anything that matters in favor of insignificant symbolism and microaggressions at elite universities. Neither has shown any interest in indigent defense. And not to be too cynical, but neither has accomplished anything of substance, despite their press releases.

So it’s a lost cause?  Not necessarily.  If politicians can’t find the wherewithal to put some money behind indigent defense because of “justice,” and if advocacy groups can’t keep their eye on the ball long enough to accomplish anything, that doesn’t mean the people who actually work in the trenches, who see how the lack of indigent defense funding make the gears of justice stop turning, can’t.

Derwyn Bunton is doing his part in New Orleans. Crash the system rather than be complicit in letting subconstitutional representation, the faux warm bodies of defense standing beside defendants whose names they don’t even know, give the impression that the system somehow manages to work.  Put the problem on the court’s docket, where there is a constitutional right to indigent defense, a mandate, without funding to make it happen, an unfunded mandate.  The feds say it’s the state’s problem to fund. The states say they’re doing the best they can by not funding it. Lawyers are props in this melodrama of a legal system.

John’s argument, that we can afford to adequately fund indigent defense, that it’s consistent with views of conservatives and liberals alike, that it’s the right thing to do, is all fine and dandy, except for the fact that putting adequate funding into effect requires the guys holding the purse strings to give a damn.  Saying, “this isn’t justice” won’t do the trick.

When the Supreme Court ruled in Gideon more than 50 years ago, it did what it almost always does, answered only a tiny piece of a huge question. Cool right, but now we have to make it happen with the nuts and bolts. It’s not that the deference to local funding makes no sense, but that it has failed miserably because it depended on the good will of politicians and the public’s caring enough for the indigent defendant to demand that their representatives make the system work. Silly assumptions.

All the pieces of a viable system exist, and could be accomplished without any great pain or suffering to the body politic, with the caveat that the taxpayers were willing to forego the occasional bridge to nowhere so that they could build a bridge to effective criminal defense.

The motivation is obvious: the gatekeepers of the Constitution, judges, shut down prosecutions for every accused who isn’t afforded his full and meaningful rights under the Constitution. Public defenders (and their enablers, like private lawyers doing cash and carry indigent defense, law students using the poor for practice, academics pretending big data and A2J apps will solve the problem) refuse to step in to create the appearance that the problem isn’t a big deal, or isn’t a problem at all.

And just one judge at a level where he can shut down the system until it fulfills the constitutional mandate for real and forever.  When word gets out that alleged criminals are being cut loose en masse for failure to provide lawyers as the Constitution requires, constituents will be angry and afraid, just as the government taught them to be, and pressure their elected representatives to put up that 0.3% to fix the problem.

The money is there. We piss away trillions on nonsense. The problem is flagrant. The constitutional mandate is clear. We just need a little boldness on the part of the judiciary to motivate legislators.

Even though judges can’t dictate how lawmakers spend public monies, they can make the price of refusing to fund indigent defense untenable by doing what they are fully authorized to do: cut loose every indigent defendant who doesn’t have a lawyer capable of giving him the time and attention to zealously represent him within 24 hours of arrest. How’s that for justice?

*One of the most pathetic truths of the social justice warriors is that they’re the patsies of the system, crying sad tears, creating petitions at Change.com, screaming at speakers they hate at presentations, all while the bodies keep stacking up, on the streets, in the courtrooms, and in the prisons.

The childish concerns are the best thing that could happen to politicians, as they deflect energy and attention from massive failures in the system by focusing on their trivial emotional issues. All that time spent crying about cyberbullying and fake campus rape is time not spent focusing on systemic failures that cost money to fix. And that they demand the elimination of free speech is the cherry on the sundae. Nothing makes Senators smile more than social justice.