Where Is The Love?

The love for the Sixth Amendment. From the name of my blog, you know how I feel about the First. A few days ago, I read a New York Time's article regarding the heavy workload of public defenders.

The essence of the article is that many public defenders around the country have so many cases to handle, that they no longer feel they can ethically take on more cases and provide defendants' their Sixth Amendment right to counsel. Here are some portions of the article.
Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point.

In September, a Florida judge ruled that the public defenders’ office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients. ...

“In my opinion, there should be hundreds of such motions or lawsuits,” said Norman Lefstein, a professor at the Indiana University School of Law — Indianapolis, and an expert on criminal justice.

“I think the quality of public defense around the country is absolutely deteriorating,” Mr. Lefstein said, asserting that unless states spent more on lawyers, the courts would force them to delay trials or, as has happened in a few cases, threaten to drop charges against unrepresented defendants.

The most immediate impact of the rushed justice, Mr. Lefstein and Mr. Carroll said, is that innocent defendants may feel pressure to plead guilty or may be wrongfully convicted — which means the real offenders would be left untouched. Appeals claiming inadequate defense are very difficult to win, experts say.

Today, I read a powerful post by a fellow blogger, S from the blog Preaching To The Choir. She is a public defender and reiterated the problem. Read a portion of her post below.
"So where's the love for the Sixth Amendment? By allowing public defender agencies to go underfunded, we're saying we don't much care about that amendment. We don't much care whether people charged with crimes really do have the assistance of counsel. Which means we don't much care whether people receive due process of law (Fifth Amendment), are protected against self-incrimination (5th), are protected against illegal searches and seizures (4th), get to confront their accusers (6th), or are protected against cruel and unusual punishments (8th). Because without an attorney who knows the rules and the law the state has to follow, you're not going to know when the state is overstepping its authority and you're not going to know what argument to make in response."

The Sixth Amendment is so crucial and fundamental to our way of being in the United States, that I think we take it for granted. At any time, any of us could be arrested for a crime. It doesn't matter if we are innocent or guilty. We could still be arrested. How many of us could actually pay for representation? Not many. Even those of us who are attorneys. Many, if not most of us would count on having an attorney appointed to us by the Court.

For a freelance writing assignment, I read a wonderful book called The Smoking Gun, by famous trial attorney Gerry Spence. Spence actually just wrote about this issue on his blog. Below is a portion of my book review. You can read the full review here.
"The Smoking Gun" shows the artistry of a master trial lawyer. It also shows us that our justice system is not always so just. Most of us all live with a little bit of denial that certain things just cannot happen to us. One of them is that we will not be wrongfully arrested for a crime that we did not commit, especially for murder. This book takes away a little bit of that denial. It leaves an unsettling feeling in our minds. Although this is not a story about you or me, it could be.

If you're interested in this topic, you might like to read another post that I wrote here called United We Stand.

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Suldog said…
Very important for ALL of our Constitutional rights not to be eroded. Good post.
S said…
Thanks for helping to spread the word. Just yesterday, I saw an opinion "article" in a newspaper (Boston, I think) complaining about how outrageous the sums paid to private attorneys who get appointed to indigent cases are. The writer complained it was ridiculous that private attorneys defending murder suspects (Neil Entwistle was the named defendant) got paid $100 while prosecutors only earn about $35 an hour! Of course, private attorneys have to use that $100 an hour to pay for all their overhead (staff, benefits, rent, utilities, Westlaw, supplies) while the proescutors get to take home that whole amount, so hardly comparable. Basically, the entire article was filled with antagonism for the basic idea that we, the good law-abiding public, should have to pay for lawyers for those scumbags. As if only rich people can be falsely accused or overcharged or illegally searched.
starry said…
powerful post and so true.what would a lot of people do without public defenders.Its always the poor who are not gong to be represented.
Lisa Johnson said…
suldog - Thanks! I'm hopeful that our new administration will take better care with it.

s - I'm glad to spread the word. Strange. Do prosecutors even make $35 an hour? I think they are underpaid too along with your average defense attorney.

I think people forget that until proven guilty, we are all the "good law-abiding public."

starry nights - Thank you! The poor and middle class too. To hire defense counsel for a criminal trial could tap out the resources of most people.
Liz Dwyer said…
Good for them for refusing cases. I'd feel horrible knowing I'd accepted a case I really didn't have time to prepare for. So many people have just gone into corporate law or other more lucrative practices instead of taking a lesser paid position that makes just as much if not more work. There need to be some loan forgiveness programs for public defenders if there aren't already.
Lisa Johnson said…
los angelista - I think it's the best thing for them to do too, so hopefully they increase funding and hire some more people. Although in this economy, I'm not sure how it will happen too soon.

I think there are loan forgiveness programs, but you have to make so little money in order to qualify that I wonder how people are surviving.
amisha said…
we talked about this article in my professional responsibility class! it was really alarming. and i think it extends to civil legal services as well (legal aid and such)... overworked/underpaid and just physically not able to give people the kind of representation they need. i'm hoping with a progressive lawyer in the white house there will be more attention paid to this issue!
S said…
A loan forgiveness package just passed Congress this past session, but we're still waiting for it to be funded and for the regs that will flesh out how it works to be passed.

As for salaries, I think $35 an hour is a pretty low estimate for a lot of prosecutors, but I would believe that amount is paid in some places. Generally, though, public defenders are paid a little less than prosecutors. Doing some rough math, I think most prosecutors in my state make more like $47 to $50 an hour. The pds I know start around $40 an hour. The main thing is there's not much room for advancement and pay raises so there's not a lot of incentive for folks on either side to stick around. Getting that loan forgiveness set up will do a lot to help with retention. When you graduate law school with $50,000 in loans (or more), you just can't afford to make only $40-$45,000 a year.

Amisha, boy I hope you're right!
Lisa Johnson said…
amisha - I'm sure Obama has it on his radar. But the man can only do so much. I am very curious about this two year plan though.

s - Thanks for the info. I'm very curious about that loan forgiveness package. I'm not making a ton of money and unfortunately I have six figure student loan debt. *sigh* It's a mortgage with no house!

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