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It's Time to Practice the Law We Preach

LAST MONTH, lawyers in Nassau County staged a one-day

protest in which they refused to accept court appointments to represent poor

criminal defendants. This dramatic gesture highlighted the woefully inadequate

compensation offered to such attorneys at rates that have not changed in 15

years. According to the protesters, the current hourly rates do not begin to

cover their basic costs and certainly don't permit them to put on a minimally

adequate defense as required by the Constitution in all criminal cases.

Indeed, a federal lawsuit filed on the same day as the protest asserts that

the inadequate funding of appointed counsel results in a "separate but unequal

system of justice." That this language echoes the rallying cry against racial

segregation is not coincidental. Minorities make up a disproportionate number

of poor criminal defendants whose lawyers are chosen and paid for by the

government. This refusal to adequately fund indigent criminal defense creates a

system that can only be described as caste-like.

One would hope that the Nassau County protest targets an unusual, isolated

failure in an otherwise equitable and functional criminal justice system.

Unfortunately, the failure to provide sufficient resources for indigent

criminal defense has become a ubiquitous problem throughout the country. What

is unusualin Nassau County, though not unprecedented, is the attempt to seek

systemic judicial relief.

Like Nassau County, most jurisdictions, including Suffolk County and New

York City, rely on private attorneys to represent indigent criminal defendants

for a statutorily determined fee. Such schemes are beset by multiple problems.

First, the hourly fees tend to be absurdly low-lower than virtually any other

paid legal work and, tellingly, much lower than what states ordinarily pay for

legal representation of their own officials in suits against the government.

Such low rates tend to attract only the extraordinarily idealistic or, more

commonly, the otherwise unemployable.

In addition to the extremely low hourly rate, about a third of the states,

including New York, impose a cap on the total fee an attorney can earn in a

given case. Such caps create perverse incentives for attorneys to maximize the

number of cases they take and to minimize the effort they expend in any given

case. In this way, the compensation schemes push defense attorneys toward plea

bargaining whether or not it is warranted. Despite the popular image that

juries decide guilt or innocence beyond a reasonable doubt, a staggering 80

percent to 90 percent of all criminal cases are resolved by plea rather than

trial.

Finally, indigent criminal defense attorneys often have to seek separate

funding for basic investigation and expert witnesses, and many jurisdictions

simply refuse to authorize resources that are essential to establish a defense.

The other most common form of indigent defense is the public-defender model

in which offices of full-time attorneys are paid flat salaries to accept

unlimited court appointments. For this model to work, however, there must be a

reasonable ratio of public defenders (and the resources available to them) to

the number of cases they're expected to handle. But as in the court-appointment

model, the overwhelming majority of jurisdictions refuse to allocate

sufficient resources to indigent defense, leading to ridiculous public defender

caseloads. In a parallel to the Nassau County case, a public defender in New

Orleans persuaded the Louisiana Supreme Court several years ago that "because

of excessive caseloads and insufficient support, indigents are generally not

provided effective assistance in New Orleans." The individual public defender

in that case had represented 418 defendants in an eight-month period and his

entire office had only three investigators to cover some 7,000 cases a year.

These problems show no signs of improvement; indeed, there's every reason

to believe they are getting worse. During the last few decades, we have seen an

unprecedented increase in the national incarceration rate. One out of every

130 persons in this country lives behind bars, and we have recently surpassed

Russia as the world's leader in imprisonment. Some might defend this scheme of

massive incarceration as a wise and just response to America's crime problem.

But no one can pretend that such a scheme is justifiable if it fails to afford

prisoners the basic right to present a minimally adequate legal defense to the

charges against them. In fact, our system relies on the inadequacy of

representation to process the overwhelming caseload of criminal defendants.

The United States has long prided itself on its moral and political

superiority to oppressive regimes that incarcerate without trial or due process

of law. But what we criticize in theory is not very far from what we practice

in fact. Some might argue that we cannot afford to provide adequate

representation to all of those whom we want to charge and imprison. But if we

are to make good on our legal system's basic promise of equal justice and

fairness, we can't afford not to.

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