Without the right to adequate counsel, is our criminal justice system legitimate?

Right to counsel questions legitimacy of our criminal justice system

The right to counsel was established 60 years ago last month in the landmark Supreme Court case Gideon v. Wainwright. The persistent failure to honor that right calls into question the legitimacy of our entire criminal justice system.

In the years since the decision, states have created indigent defense delivery systems staffed by public defenders — attorneys who work full time defending poor people accused of crimes — and by assigned counsel — private attorneys who agree to accept criminal cases assigned to them by the court. With its Gideon decision, the Supreme Court found that counsel is a necessity, not a luxury, but state legislatures have spent as little as possible on the defense of individuals accused of a crime.

By providing counsel to people accused of a crime, the hope was that we would end what the Supreme Court called “assembly line justice.” But underfunding indigent defense providers has only sped up the assembly line. The mere presence of defense counsel lends our justice system the veneer of legitimacy, while the inability of defense counsel to do the job required of them makes it rotten at its core.

States have created indigent defense systems that are ineffective due to underfunding, which limits the ability to hire and retain enough lawyers to handle the number of cases assigned. This, in turn, leads to excessive caseloads which force public defenders to triage cases and make uncomfortable decisions about which cases deserve resources and which fall by the wayside.

Some public defender clients receive excellent representation, but others may receive little to no representation at all. Some states also limit the effectiveness of assigned counsel by paying them hourly rates that don’t even cover their overhead cost, setting limits on what they can be paid or using flat fee contracts, all making the work unprofitable. The result is a justice system in constant starvation mode, without the resources it needs to function properly.

In Wisconsin, the state public defender’s office has an internal staffing shortage due to low salaries for full-time public defenders and a shortage of private attorneys willing to take assigned cases because of low hourly rates. This has led to defendants who sit in jail for months without counsel, a practice that is now the subject of a lawsuit.

But it’s not just Wisconsin that’s starved of resources. This stark reality is on display across the country.

In Missouri, overwhelming caseloads forced the Missouri state public defender to decline cases, something they are ethically required to do when they believe they can’t provide effective representation. Interestingly, the state’s response was not to provide the public defender with additional funding but to create a “waitlist” for representation in criminal courts, a practice that a federal court has deemed unconstitutional.

You can read the full article at The Hill