Law in Contemporary Society

The Price of Justice

-- By BrianHooven - 25 Feb 2013

The problem with justice is that it costs money. When people can’t afford to pay, society tries to do it for them. Sometimes, this does not work, as illustrated by the indigent defense system. Criminal justice system is premised on an adversarial system where the prosecution carries a burden to prove guilt beyond all reasonable doubt, and an opposing force (the defense) illustrates possible doubts, at which point a judge or jury can make an informed decision concerning reasonableness. However, the indigent defense system is not provided sufficient resources to accomplish their role. This affects the majority of felony defendants, 80% of which draw upon state funded public defenders for representation (in the 75 largest US counties). (BJS: State Public Defender Programs 2007 There have been efforts to improve the system, however, they still fall short.

Much of the current unfairness of the criminal justice system stems from the imbalance of resources regarding personnel, caseloads, and funding between indigent defenders and their prosecutorial counterparts. In 2004 and 2005, 4300 state-employed public defenders were matched against 25,000 state-employed prosecutors. (BJS: Prosecutors in State Courts; BJS: State Public Defender Programs 2007 Additionally, public defender offices suffer from a support staff deficiency. State public defender offices have one investigator for every six litigators while prosecutorial offices have one investigator for every three litigators in addition to 98% having direct access to their entire corresponding police department. (BJS: Prosecutors in State Courts

Why make your links this way? It's no more helpful to the reader, and it's very ugly to read. Just link the cites to the relevant phrases. There's not much point in repeatedly referring the reader to the entirety of an extensive document presented as a PDF file. Why don't you refer to the document in a note, and give page references in the text?

The out-manned public defenders are also overburdened. Their median caseload is far in excess of the official recommendation, a lofty 200 misdemeanor and 75 felony cases. (BJS: State Public Defender Programs 2007 Prosecutorial offices also receive significantly more funding ($4.9 billion in 2005), while public defender programs could spend only $830 million defending the accused clients. (BJS: State Public Defender Programs 2007;BJS: Prosecutors in State Courts

The combination of inadequate resources and excessive caseloads creates a necessity to minimize per case expenditures in terms of both time and money.

Both offices should be under pressure to minimize per case expenditures, surely, regardless of the absolute levels of funding. The goal is not parallel investigative measures, nor is the defense under the same burdens of production and proof. Nor is the public defender the only defense service, while the prosecution is a monopoly. One can readily accept the belief that we underspend on public criminal defense services without therefore believing that an injustice is done because prosecutorial funding is much greater than the funding of defense services.

In 2007, the average per case expenditure for an indigent client was only $510. (BJS: State Public Defender Programs 2007 Concerning time expenditures, there are ample instances where a public defender meets his client on the day of trial, advises him to take a pre-negotiated plea, and the client pleads guilty, having spoken to his attorney for the first time only moments before he is convicted. (Gideon's Silence This pressure on each defender to resolve his cases as quickly and efficiently as possible may result in public defenders neglecting facially simple cases (90-95% of indigent clients plead guilty) and stereotyping scenarios to pursue more controversial ones, depriving clients of the best possible representation. (BJS: Indigent Defense Systems Furthermore, those that plead guilty then face harsher sentencing than their privately defended counterparts. (Gideon's Silence Perhaps the majority of guilty pleas would be unaffected, but it seems inevitable that when attorneys have little time and scarce resources at their disposal, their clients will suffer.

No one doubts, either, that the poor are treated more harshly than the rich, or that we could not justifiably or constitutionally require everyone to use public defense services.

Society has already implemented a variety of measures to try and improve indigent defense. Indeed the very creation of the public defender’s office was one of the first steps in the right direction. More recently, there has been an increasing trend towards private attorneys assuming pro bono responsibilities.

This overlooks the CJA system. And assumes, wrongly, that pro bono criminal representation is now or has ever been a significant contribution to the overall offering of defense services.

This approach is somewhat promising, but alone will not be enough.

A sententious conclusion, accurate no doubt, but based on misimpression nonetheless.

Two things need to be accomplished to begin the path to fair indigent defense: the quality of public defender representation needs to be improved, and the quantity of private pro bono work needs to be increased.

Nobody else supposes that pro bono criminal representation makes any sense for dealing with the workflow of urban criminal justice. Part-time non-specialist lawyers otherwise strangers to the criminal justice process are going to play a significant role in moving the workload of The System? That's like expecting volunteer amateurs to replace the police department's detective force. Why would you expect that to work?

And why would we support the judges, the prosecutors and the police out of general tax revenues, but fund criminal defense for the poor by a self-collected tax on the professional service fees of a small number of law practices? What sense does that make fiscally or socially?

The first can be accomplished through increasing the available resources, which will allow a more appropriate per-case effort. Several mechanisms can help to achieve this: first, the caseload limits need to be rules, not recommendations.

Achieving, presumably, a lot of broken rules? Is this somehow going to make 200 cases fit inside 100 folders?

There also must be a process for revising the maximums should an attorney “finish early”. However, maximizing quality will lead to less quantity, and therefore unrepresented indigent defendants. Second, the public defender’s offices must increase their attractiveness to bolster their staff. This can be done through increased salaries, and better loan forgiveness programs. Perhaps instead of ten years of public service, law school loans are forgiven after five years of continuous public service in a defense office. Funding will come from the government, which needs to increase judicial expenditures dedicated to public defense (currently only 15%). (BJS: Indigent Defense Systems These measures should begin to ensure that each indigent client is represented on an individual level consistent with his Constitutional rights.

In the end, you said: spend more money. Do you think they haven't thought of that?

Next, the volume of pro-bono work being done by private practicing attorneys must be increased. Only 46% of these attorneys are meeting the ABA recommendation of 50 hours of pro bono, averaging 38, and only 18% of these hours are dedicated to criminal work. (ABA: A Report on the Pro Bono Work of America's Lawyers Private sector attorneys identified two main obstacles to pro bono commitments: time and employers (billable hour requirements). (ABA: A Report on the Pro Bono Work of America's Lawyers To increase available time, criminal pro bono hours should be counted as part of the CLE requirements.

Why? What has one thing to do with another?

Since these requirements must be fulfilled, it would allow the attorney to spend the time allotted to be spent in a CLE classroom resenting indigent defendants.

An unintentional truth?

To combat employer discouragement, tax incentives, or government malpractice subsidies should be awarded to firms or individuals that practice a large volume of pro bono work (judged as a percentage weighed against their billable hours). This would be subject to a governing committee that would review and grade the quality of indigent representation given. Financial incentives would be awarded based on both average quality and percentage pro bono hours. Finally, these benefits would be amplified for those that took on criminal pro bono cases instead of other categories of law.

In other words, we should spend public money on private lawyers to encourage them to use marginal effort to provide part-time non-professional criminal representation to poor people. Aside from the fact that this is actually a fancy Rube Goldberg form of "spend more money," which isn't going to work this way either, it isn't clear why this is a more efficient way to deal with the problem than "prosecute fewer poor people."

Because the implicit assumption here is that the criminal justice system is not yet large enough, and—no matter how it is disguised as a tax on lawyers followed by subsidies to lawyers—we need the State to make it bigger. Are we sure that's true, and how do we know?

Although these measures will not solve the problem, they will begin to approach a solution. When we look far in the distance, only by moving closer can we see it more clearly.

"Moving closer" can be a synonym for "forgetting about the larger context." "Clarity" can come at the expense of comprehension.

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r6 - 14 Jan 2015 - 22:15:33 - IanSullivan
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