Lawyers For All

I first saw the idea raised by John Kindley in this comment at Simple Justice: free criminal-defense lawyers for everyone, not just the indigent. I replied there that society should be willing to bear the full cost of prosecuting accused law-breakers, including the cost of due process.

Norm Pattis came up with the same idea:

It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren’t defendants?

Norm has started a blog called Lawyers For All to help spread the idea. There he asks,

Why aren’t all Americans entitled as a matter of right to the services of appointed criminal counsel, together with access to the services of experts and investigators equal in caliber and expense to those serving the prosecution? Isn’t it the case that the public defender, able as it is to provide representation to the poor, is really but a first step in fulfilling the dream of equal justice for all?

Norm’s premise—that someone with the resources to only hire a lawyer cannot get the help of experts—is not entirely correct. Ake v. Oklahoma says that the State has to provide the indigent defendant with at least “the basic tools” to present his defense; in Texas, at least, Ake applies to indigent defendants with appointed counsel, so that if, after paying counsel, the accused has no money left for the basic tools, he is still entitled to the appointment of experts for his defense.

Still, Norm’s not wrong about the asymmetry inherent, like violence, in the system. The difference between “the basic tools” and what is available to the State still creates that asymmetry. For example:

[C]onsider the case of man accused of molesting a child a decade or more ago. The state will confront the man not just with the testimony of the alleged victim, but with experts on forensic interviewing, delayed disclosure of traumatic memories, incremental disclosure of crimes, and such other experts as it will.

My issue with the criminal justice system is a different one than asymmetry.

The system now requires society to pay for due process only for those who are indigent. Those who are not indigent are forced to pay for their own due process (in the form of a lawyer). Those with plenty of money do fine, and the working poor get screwed. But they are all presumed innocent.

Why should the (presumptively) innocent, whether wealthy or working-poor, have to dig into their own pockets to defend against charges that are (presumptively) false?

0 responses to “Lawyers For All”

  1. How do you implement it? Given the fact that our society can’t even seem to properly fund and leave to manage themselves the defender’s offices for the indigent, what’s to say that this is possible? I’m sure the government would love to gut the private defense bar to nothing and then overwhelm the publicly appointed defense bar with caseloads far beyond their funding.

    Nice idea in theory, but there would have to be an entirely independent body to implement it, which there never would be.

    I’ll have some more thoughts on this later. Tired right now.

  2. Interesting comment from Lee Stonum, “I’m sure the government would love to gut the private defense bar to nothing and then overwhelm the publicly appointed defense bar with caseloads far beyond their funding.”
    Substitute “private defense bar” with “medical field” (or appropriate medical term — Tired right now, too.). That’s what we’ll get with the one payer government controlled medical system.

    When a defendant hires their own attorney, they are, in effect, paying for their own attorney, plus, by way of taxes, paying for the attorney prosecuting him/her. What a raw deal!

    I’ve often thought of your question when a defendant is found “not-guilty”, but has lost everything in his/her defense, having had to sell their house, loss of job, etc.

    Maybe there could be a sliding scale for paying for public defense so that not only indigent (and indigent by choice) get representation, but working poor and working anyone could use it. It might help the working poor from falling through the cracks of justice. Side note: I heard of a judge in Oklahoma who ordered at least two guys in his court who were able to work, but chose not to, to get jobs and come back with an attorney. Good for the judge! That doesn’t help Norm’s plight, but helps taxpayers

    This still does not answer your question. Will have to ponder that.

    On other notes:
    When the cost of going to court is so high, why are jurors only paid $6 per day in exchange for giving up their wages for the day (or more) in doing their civic duty?

    Maybe retired Congressman attorneys, since they do continue collecting full benefits and pay from taxpayers after leaving public office, could step in now and then and represent a defendant or two, as a public servant might, and help a taxpayer in this way.

  3. On the subject of asymmetry- why deny the government the joy of asset forfeiture? If you use your car to assist in the violation of our state’s inane drug laws you can lose said vehicle. But when an officer pulls you over without RS/PC, that violates our constitution and should be met with the same reward. Think how the system would change if citizen’s could forfeit government assets, the contraband from crimes against our Constitution.

    This would make LEO/DAs instant experts in the 4th Amendment as “ignorance of the law is no excuse”. Forget to read Gant? Tough cookies, you’re losing that shiny new cop car. Really, is there any downside to this idea? We could use these assets to help fund the universal defense fund.

  4. Let’s not forget that the accused sex offender can easily spend $50,000 on a defense, and unless its patently, ridiculously apparent that the prosecutor was personally motivated, there is no way to recoup that money. I’m not talking How-could-anyone-look-at-that-evidence-and-think-a-prosecution-was-appropriate obvious, I’m talking email-that-says-“I-hate-Mr.-Soandso-let’s prosecute-him-for-a-sex-crime-even-though-he’s-innocent” obvious. (It’s way harder typing like that than I expected).

    I’ll also mention that under the Indian Civil Rights Act, no one is entitled to an attorney except the people that can pay for one. Having seen how that can turn out, I’ll gladly support attorneys for all.

  5. There is a somewhat similar issue concerning trial I find odd. Why is a hung jury not the same as an acquittal? The burden is supposed to be on the state. If the state fails to convince a unanimous jury (ignoring that non-unanimity is allowed in a couple states) the state should be considered to have lost the case not get a do over.

    I would even go for one juror not being a bar to conviction if two jurors were enough for outright acquittal.

    I’ve asked a couple law professors this question and the best answer I’ve been given is “it’s just always been that way.” rather than anything with logical consistency.

  6. One problem with the lawyers/doctors analogy:

    If the government pays for your doctor, your doctor is still not being paid by the sponsors of the disease that infects you.

    When the government pays for your lawyer, your lawyer is being paid by the government that seeks to convict you. There is a systemic bias against providing the accused with a zealous defense.

    Not to say a good PDs office cannot overcome that systemic bias. It can. Unfortunately, good PDs offices, adequately funded, staffed, etc., are the exception and not the rule. I am all for good PDs offices. Until those who presently qualify are uniformly getting the best defense, I don’t want to further burden PDs.

  7. Other systemic inequities that I am hard-pressed to solve:

    1) Bonding out of jail. If I were arrested on all but the most heinous of crimes, I’d be at the mercy of the local jail’s processing time to get out, but little else. I could probably make bail. Also, I work a salaried job with sick/vacation/personal days available. So unless I’m accused of a homicidal rampage, I’m likely to be able to salvage my job post-arrest. Not so with many of the working poor, who may or may not be able to come up with enough for a bond or bondsman, and regardless, may be hourly employees whose unexcused appearance for any length time threatens their continued employment.

    2) Fines post-conviction. Currently, the system assesses fines using a “what is the offense worth” calculus. Again, while I would hate to give a chunk of my disposable income to the Court and DPS after a DWI conviction, I would not have to choose between my surcharge and my electricity bill. Some people do, hence the endless suspension-surcharge cycle. (Some European countries are actually assessing traffic fines, for example, based on the income level of the person committing the offense.)

    Is it fair that the non-indigent accused (including the entirely innocent) have to cover their defense costs? Perhaps not, but a) the Belief in a Just World is so strong among Americans you’d never see popular support for public funding of defense for everybody, b) it’s just one of many inequities that exist in the system, and c) I’d prefer to select my own counsel, thanks. Given a choice between a system where everybody gets free counsel from “the wheel” or whatever method their county uses, and choosing and paying out of your own pocket if you can, I think many people would choose to pay. People tend to think they get what they pay for, so paid counsel is better, and I’d want a defense attorney I’ve judged to be competent on my own standards, not the Senate Bill 7 standards of my local judiciary.

  8. I kind of think it is all about money at this point. It would cost so much more to make those kinds of services available to everyone. And the rich would still have the money to get the very best lawyers and support. That will probably never change.

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