Law and Order has in many ways informed a nation of its constitutional rights upon arrest. Now, Miranda rights have so been engrained in our memory that we can recite them like a pervasive car commercial jingle.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be provided to you”
But perhaps it should say:
“You have a right to an attorney — not necessarily an attorney specialized in criminal defense, with experience in the courtroom, or one compensated for his counsel. You might meet him at your trial. He’s the one who has no familiarly with you or your case. That is, if he remembers to appear at your trial at all.”
In a particularly tactful move to call attention to these tacit Miranda Rights, Michael Barrett, the Director of the Missouri State Public Defender System, commissioned the governor, Jay Nixon, who had recently been responsible for detrimental budgetary cuts, to serve as counsel for an upcoming case of suspected aggravated assault. And Barrett was fully within his powers to do so, thanks to a measure within the state’s penal code that allows him to “delegate the legal representation of any person to any member of the state bar.” In an open letter, Barrett noted that Governor Nixon’s appointment was, in fact, his first time invoking the law, stating, “It is my sincere belief that it is wrong to reassign an obligation placed on the state by Sixth and Fourteenth Amendments to private attorneys who have in no way contributed to the current crisis.”
However, the provision that allowed Barrett to take this kind of action transcends Missouri’s penal code. Many states have assigned counsel programs, though they come in different forms. Ad Hoc Assigned Counsel Programs outsource cases to private attorneys on a rotation or based off whoever is in the court at the time of assignment. States like New York will compensate lawyers on an hourly basis and demand certain prior court-room experiences. Other indigent defense programs are more coordinated or contractual, where specific attorneys are matched with defendants based on expertise or past experiences.
While there are certain endemic issues with these programs, the biggest offenders of constitutional rights are programs like that of Louisiana, where courts randomly assign cases to any local lawyer — pro-bono. Some can arguably attribute this to the desperation of current judicial climate: Louisiana’s public defenders are so under-funded that 33 out of 42 offices either refuse or cases or maintain waitlists, leading to its status as the state with the second-highest rate of exoneration, which frequently means an inmate gets charged with something that never happened. In places like Caddo Parish, notorious for its brutal sentencing, 22 lawyers are tasked with handling 15,000 cases a year. The tremendous waiting time generated by this unmanageable caseload leads to hundreds to thousands of waitlisted people having to await sentencing from inside a jail – despite never having been proven guilty of a crime. This leaves innocent people wrongly accused of crimes (even non-violent ones) and sitting in jail for weeks or months. The severity of the situation has rendered it unconstitutional in clear violation of the Sixth Amendment, the right to competent counsel and a quick trial.
However, perhaps worse than guiltless citizens sitting in jail waiting for judgement is the predicament of guiltless people who face conviction due to an incompetent lawyer assigned to them by the state system. The system in Louisiana enlists the help of any bar-certified lawyer to take on these cases, without controlling for quality, experience, or background. Real estate, patent, commercial, and personal injury lawyers are therefore tasked with defending the freedom of the state’s poorest residents, who are often facing a life sentence in prison. Many of the lawyers assigned to these cases have no court experience, much less training on how to argue a criminal defense for assault, battery, or any of the myriad crimes with which their clients may be charged.
NPR recently reported on Jack Bailey, an accident and injury lawyer in Louisiana, whom the court mandated to defend Trastavien Hardy, accused of burglary and facing 20 years in prison. This American Life showcased Bailey’s case as an anomaly: a private attorney faced with a case he was woefully unqualified for, but who chose to learn criminal law, investigate the evidence, and prepare to dismantle the state’s untenable case against his client. One might assume that any lawyer could invest themselves into the cases they’re handed by the court and study criminal defense, preparing themselves to the extent that Bailey did. However, given that the American Bar Association prescribes mere weeks for lawyers to prepare for these kinds of cases, investing so much time in a pro-bono case would mean taking significant time away from cases for which lawyers are actually compensated to fight. In short, few lawyers have the time or incentive to address these cases head-on. To save time, many lawyers instead encourage even those clients who assert innocence to succumb to plea deals, saving them the resources they’d have to offer up for a trial. That’s if they ever show up in the first place—there’s no standard requiring lawyers to ever even visit inmate clients in jail to discuss the case prior to the court date, and if the lawyers fail to appear in court, their clients are left with the choice to accept a plea deal without any kind of legal counsel or continue to wait in jail until the next court date (presumably with the same lawyer).
It’s easy to deduce how this system of assigning legal council would disproportionately impact the poorest citizens in a state, who are most likely to require state-subsidized legal representation. Either they’re told to take a plea by an over-worked, over-burdened public defender, or by a private attorney trying to save time and skirt his “civic responsibility.” Though technically these people have been provided legal representation, the incompetence of these lawyers to defend their clients before the law ultimately infringes upon their right to a fair trial. While there’s an irrefutable need to increase funding for public defenders, the conversation needs to shift: should we really be conjuring up new ways to shuffle inmates from one indifferent lawyer to another?
The Bureau of Justice Statistics found that the number of public defenders increased by 4% between 1999-2007 while their caseloads increased by a whopping 20%. This unmanageable increase has even led to counsel programs crowd-funding for their public defenders, exonerating inmates at unprecedented levels, and load-balancing between counties. Ultimately, this issue has reached a point of crisis and thus an opportunity to address the root issue of supply over symptom.
The state government of Louisiana has recently made some optimistic progress, passing a bill to establish the Louisiana Reinvestment Task Force, which would investigate ways in which the state can reduce prison populations, reduce recidivism, and allocate resources more effectively. It has also raised the age of consideration for juveniles in adult prisons. However, with an incarceration rate 137% higher than the national average, Louisiana needs to comprehensively overhaul its criminal justice system from the ground up.
Any state’s private attorneys shouldn’t be tasked with the burden of defending innocent people from decades of imprisonment. This change could begin with community policing or taking such measures as eradicating the three-strikes laws for non-violent offenders and revising mandatory sentencing laws. Each of these would allay the pressures on public defenders by curtailing the seemingly endless flow of defendants. Engaging the private sector in endeavors to reduce rates of recidivism would be far more useful than defending those already facing jail time. Reshaping “civic duty” as a willingness to employ convicted members of the community may well be an easier ask than mandating lawyers spend weeks working for free on a case of which they have limited knowledge. Movements like “Ban the Box” rely on private citizens and yet don’t have a detrimental effect on both parties. An investment in reducing the supply of accused defendants would work to ameliorate the current situation far more effectively than pouring more funds into a perpetually-underfunded legal defense system.
