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
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.