Is there a solution in these economic times?

November 21, 2008

Editorial

Hard Times and the Right to Counsel

Forty-five years after the Supreme Court’s landmark ruling established a defendant’s constitutional right to counsel in state criminal proceedings, that crucial right is hanging by a tattered thread.

Public defenders’ offices always have been underfinanced and overburdened. With state revenues in free fall, the problem is reaching crisis proportions and creating a legal and moral challenge for the criminal justice system, state legislatures and the legal profession.

Statewide public defenders in Kentucky and Minnesota and in cities such as Miami and Atlanta have been forced by budget cuts to fire or furlough lawyers. In at least seven states, public defenders’ offices are refusing to take on new cases or have sued to limit them. They argue that budget cuts and rising case loads undermine their ability to provide adequate representation.

In a disturbing example of legal triage, a Florida judge ruled in September that the public defenders’ office in Miami-Dade County could refuse to represent many poor defendants arrested on lesser felony charges so that its lawyers could provide a better defense for other clients. Behind the ruling were some chastening statistics: Over the past three years, the average number of felony cases handled by each lawyer rose from 367 annually to nearly 500. Misdemeanor case loads rose from 1,380 to 2,225.

Public defenders’ offices all over the country are reporting similar problems. The immediate result is that innocent defendants may feel pressure to plead guilty. There also is an increased risk of wrongful conviction, which means that the real offenders would go free.

With states struggling to come up with financing for schools and hospitals, we fear politicians are unlikely to argue for significantly more money for public defenders’ offices. To solve the immediate crisis, new sources of support would have to be found — quickly.

One approach would be for states to increase the registration fees charged to lawyers. The private bar also must significantly expand pro bono representation. Such efforts alone cannot fill the gap. Ultimately, government must take responsibility. All defendants, rich or poor, have the right to competent legal counsel.

Copyright 2008 The New York Times Company

Do you think a state could/should require an attorney to handle one of these misdemeanor cases a year pro bono in order to be allowed to practice? Maybe even include low level felony cases to give a lower caseload to the public defender or appointed counsel? Basic problem would be to insure that counsel doesn't push to have client plead out when there is a good chance of a trial's verdict being in favor of the defendant. Arguments could be put forth on both sides of this, but what do you think?