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50 years after Gideon, we have far to go in assuring quality criminal defense to the poor and non-wealthy

Mar 19, 2013 50 years after Gideon, we have far to go in assuring quality criminal defense to the poor and non-wealthy

Clarence Gideon.

Beyond — and also part of — the fanfare of yesterday’s fiftieth anniversary of Gideon v. Wainright, 372 U.S. 335 (1963) (requires making available tax-paid lawyers for indigent defendants facing incarcerable prosecutions, under the Sixth Amendment), here are some of my own thoughts:

– The criminal justice system is financially oppressive to criminal defendants. Non-wealthy criminal defendants who do not qualify for indigent criminal defense through the public defender and court appointed counsel system repeatedly bear a substantial financial burden to pay for a criminal defense lawyer and litigation expenses. Even if the defendant succeeds with an acquittal or case dismissal, ordinarily, s/he gets no reimbursement from the prosecution nor government for paying for his or her criminal defense.

– The United States policing and prosecution system is an overly expensive, overgrown, runaway train that severely invades civil liberties, starting with the very fact that policing against such comparatively victimless crimes as drug use is antithetical to a truly free society. The United States incarcerates nearly one quarter of the world’s prison population and the highest population rate per capita, even far surpassing China, that bastion of human rights abuses. A key way to get a handle on this overly expensive runaway train is to substantially shrink the criminal justice system by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per se blood alcohol content rules in the drunk driving laws.

– Praised be Clarence Gideon, who beat the tiny odds of obtaining Supreme Court review of his case — made all the tinier by his pro se pencil-writing status (likely from the common prison practice of denying pens to inmates, lest they use them as ball-point weapons) — for his successful courage to beat those odds. Praised be then-upcoming Supreme Court Justice Abe Fortas and his Arnold, Fortas and Porter law firm for successfully taking on Gideon‘s plight pro bono before the Supreme Court.

– With tight federal, state and local budgets, we see tax dollars for indigent defense dwarfed by the continuing overall huge budgets for police, prosecutors, courts, and jails. Expect to see plenty of politicians pushing for fully-budgeted policing, prosecuting, jailing and judging, but not many advocating for sufficient indigent defense budgeting.

– I cringe seeing criminal prosecutions carrying severe collateral consequences being made non-jailable so as to prevent indigent defense eligibility. Repeatedly in Fairfax County, Virginia, I see judges deny indigent defense to defendants after the police officer or prosecutor waives seeking jail time. I cringe seeing indigent/lawyerless people prosecuted for drug paraphernalia possession in Maryland (non-jailable for the first conviction but jailable for the second, and deportable for a conviction with no exceptions) and open alcohol container in Maryland (non-jailable) and intoxicated in public in Virginia (non-jailable, but a blight on one’s criminal record for employment purposes, and which also increases deportation risks when enough alcohol-related convictions are racked up).

– Caseloads, pay, support staff, and expense/expert witness budgets for indigent defense lawyers runs from top-of-the-line for federal public defenders to unconstitutionally high caseloads, insufficient support staff and low pay and low expense budgets in various states for their public defender lawyers and court-appointed indigent defense counsel. The horror stories have already been written, as well, about the state jurisdictions where indigent defense contracts are awarded to low-bidding law firms, as if their services are no different from the coffee beans and pork bellies that are treated on the commodities exchange. Mix insufficient pay and resources with the defense of those risking the death penalty, and that is an untenable mix.

– When I became a Maryland assistant public defender lawyer in 1991 (where I worked through 1996), I thought I had found the ideal job, joining my passion for criminal defense and providing equal access to justice. Overall, the work was very rewarding, as I also feel today when doing occasional court-appointed cases and pro bono work, as well as with my retained work. However, public defender offices are still bureaucracies, which was uncomfortably underlined when, only a few weeks into my public defender job, the state’s chief public defender circulated a memorandum for each of us to sign that acknowledged our knowing the office’s drug testing policy (I never learned of anyone actually being asked to submit to a drug test), probably on the agency’s letterhead that included the state seal and the name of the governor, whose name should not have been there, seeing that public defender offices are supposed to be independent of governors.

– Virginia is a tough place to qualify for indigent defense. A jobless person can be denied indigent defense there if he lives with his parents who make a decent income. By contrast, in Maryland, well-dressed college students with parents paying their tuition will qualify for indigent defense if they have no income and limited personal assets, even if they have good monthly allowances from their parents.

– The Justice Department’s website praises Gideon. I would like to see the Justice Department and all prosecutors honor criminal defendants all the more by focusing on focusing mainly on prosecuting rape, robbery, assault and murder rather than on other crimes, and to inject more humanity in the convictions and sentences that they seek.

– What other countries provide quality, free indigent defense in criminal cases?

We have long to go post-Gideon. I praise the man and his Supreme Court victory for getting us this far.

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