The Last Line of Defense

The U.S. House of Representatives will hold a historic hearing to investigate the failure of a state to realize the Constitution’s guarantee of access to legal counsel for those accused of a crime.
The hearing, which will be held by the House Judiciary Committee’s Sub-Committee on Crime, Terrorism & Homeland Security, will focus on the serious flaws in Michigan’s public defense system.

The need for federal attention could not be more urgent.

This month, we marked the 46th anniversary of Gideon v. Wainwright, in which the U.S. Supreme Court determined that the Sixth Amendment to the U. S. Constitution requires that states provide attorneys for people charged with serious crimes who could not afford to hire counsel. We should also be aware of another milestone, however. The need for public defense services has expanded so drastically that today public defenders represent defendants in more than 80 percent of criminal prosecutions nationwide. Quality public defense has become an absolute prerequisite for ensuring fair criminal justice in America. Unfortunately, in many states across the country the promise of Gideon is an empty one, with diverse groups of middle and low-income people being processed through courts as if they were identical parts on a conveyer belt.

In recent years, the complexity of criminal defense representation has increased exponentially. Forensic evidence, including DNA, has become central to criminal practice, requiring defenders to develop at least a basic understanding of a number of scientific disciplines. Sentencing schemes have become more draconian, with sentencing enhancements and “three-strikes” laws evolving to the point where a shoplifter can be sentenced to life in prison.

The end results of criminal convictions have also expanded far beyond jails and fines and probation. Clients can face punishing consequences related to their immigration status, ability to vote or own firearms or to access student loans and professional licenses, public housing eligibility, and internet-based registration requirements, the modern equivalent of the scarlet letter. Punishment for many criminal convictions now lasts a lifetime and all of these disabilities can impede a person’s ability to successfully integrate into the community. At least for now, it seems, our society has relegated concepts such as forgiveness and redemption into the past.

Public defense lawyers must either keep up with this ever-expanding web of scientific evidence, complex sentencing schemes, and life-long punishments that are often scattered throughout state law codes, or risk hurting their clients and inadvertently perpetuating injustice. But with caseloads high and resources constantly being scaled back, few public defense professionals have the time or the tools to stay properly trained.

All of this comes on the heels of hundreds of assessments and reports that have, over the past 40 years, repeatedly documented the sorry state of public defense in our country. Most public defense systems are horribly underfunded and often lack the independence that would allow them to advocate for improvements. The most visible result is the small army of our fellow human beings who have lost decades of their lives, innocent of any crime but convicted by out-of-control criminal justices systems, while the guilty parties remain free in our communities.

Creating quality public defense is not magic. It is the result of recognizing that justice in America must be available to all, regardless of one’s ability to pay. The American Bar Association’s Ten Principles of a Public Defense Delivery System, a short list of the basic necessities that must be present in any functioning public defense system, can show the way. With the Ten Principles as a guide, the federal government can use funding and standards to encourage states to invest in their public defense systems and can provide training and support much the way it already does for state prosecutors, exemplified by the National Advocacy Center, a joint venture of the National District Attorneys Association (NDAA) and the U.S. Department of Justice.



The House Judiciary Committee is right on target in holding a hearing to examine our country’s public defense deficiencies. At the National Legal Aid & Defender Association (NLADA), we hope that it will be only the first step. The federal government should lead the states toward the day when the Sixth Amendment lives in every courtroom in America and equal justice is a reality throughout our nation.

Please contact the members of the House Judiciary Committee.
Thank them for holding this hearing and ask them to support federal leadership of public defense reform.
http://judiciary.house.gov/about/members.html

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