Why make your links this way? It's no more helpful to the reader, and it's very ugly to read. Just link the cites to the relevant phrases. There's not much point in repeatedly referring the reader to the entirety of an extensive document presented as a PDF file. Why don't you refer to the document in a note, and give page references in the text?

Both offices should be under pressure to minimize per case expenditures, surely, regardless of the absolute levels of funding. The goal is not parallel investigative measures, nor is the defense under the same burdens of production and proof. Nor is the public defender the only defense service, while the prosecution is a monopoly. One can readily accept the belief that we underspend on public criminal defense services without therefore believing that an injustice is done because prosecutorial funding is much greater than the funding of defense services.

In 2007, the average per case expenditure for an indigent client was only $510. (BJS: State Public Defender Programs 2007 http://bjs.gov/content/pub/pdf/spdp07.pdf). Concerning time expenditures, there are ample instances where a public defender meets his client on the day of trial, advises him to take a pre-negotiated plea, and the client pleads guilty, having spoken to his attorney for the first time only moments before he is convicted. (Gideon's Silence http://www.slate.com/articles/news_and_politics/jurisprudence/2006/05/gideons_silence.html). This pressure on each defender to resolve his cases as quickly and efficiently as possible may result in public defenders neglecting facially simple cases (90-95% of indigent clients plead guilty) and stereotyping scenarios to pursue more controversial ones, depriving clients of the best possible representation. (BJS: Indigent Defense Systems http://bjs.gov/index.cfm?ty=tp&tid=28). Furthermore, those that plead guilty then face harsher sentencing than their privately defended counterparts. (Gideon's Silence http://www.slate.com/articles/news_and_politics/jurisprudence/2006/05/gideons_silence.html). Perhaps the majority of guilty pleas would be unaffected, but it seems inevitable that when attorneys have little time and scarce resources at their disposal, their clients will suffer.

No one doubts, either, that the poor are treated more harshly than the rich, or that we could not justifiably or constitutionally require everyone to use public defense services.

Society has already implemented a variety of measures to try and improve indigent defense. Indeed the very creation of the public defender’s office was one of the first steps in the right direction. More recently, there has been an increasing trend towards private attorneys assuming pro bono responsibilities.

This overlooks the CJA system. And assumes, wrongly, that pro bono criminal representation is now or has ever been a significant contribution to the overall offering of defense services.

This approach is somewhat promising, but alone will not be enough.

A sententious conclusion, accurate no doubt, but based on misimpression nonetheless.

Two things need to be accomplished to begin the path to fair indigent defense: the quality of public defender representation needs to be improved, and the quantity of private pro bono work needs to be increased.

Nobody else supposes that pro bono criminal representation makes any sense for dealing with the workflow of urban criminal justice. Part-time non-specialist lawyers otherwise strangers to the criminal justice process are going to play a significant role in moving the workload of The System? That's like expecting volunteer amateurs to replace the police department's detective force. Why would you expect that to work?

And why would we support the judges, the prosecutors and the police out of general tax revenues, but fund criminal defense for the poor by a self-collected tax on the professional service fees of a small number of law practices? What sense does that make fiscally or socially?

Achieving, presumably, a lot of broken rules? Is this somehow going to make 200 cases fit inside 100 folders?

There also must be a process for revising the maximums should an attorney “finish early”. However, maximizing quality will lead to less quantity, and therefore unrepresented indigent defendants. Second, the public defender’s offices must increase their attractiveness to bolster their staff. This can be done through increased salaries, and better loan forgiveness programs. Perhaps instead of ten years of public service, law school loans are forgiven after five years of continuous public service in a defense office. Funding will come from the government, which needs to increase judicial expenditures dedicated to public defense (currently only 15%). (BJS: Indigent Defense Systems http://bjs.gov/index.cfm?ty=tp&tid=28). These measures should begin to ensure that each indigent client is represented on an individual level consistent with his Constitutional rights.

In the end, you said: spend more money. Do you think they haven't thought of that?

Next, the volume of pro-bono work being done by private practicing attorneys must be increased. Only 46% of these attorneys are meeting the ABA recommendation of 50 hours of pro bono, averaging 38, and only 18% of these hours are dedicated to criminal work. (ABA: A Report on the Pro Bono Work of America's Lawyers http://www.americanbar.org/content/dam/aba/migrated/2011_build/probono_public_service/report_2011.authcheckdam.pdf). Private sector attorneys identified two main obstacles to pro bono commitments: time and employers (billable hour requirements). (ABA: A Report on the Pro Bono Work of America's Lawyers http://www.americanbar.org/content/dam/aba/migrated/2011_build/probono_public_service/report_2011.authcheckdam.pdf). To increase available time, criminal pro bono hours should be counted as part of the CLE requirements.

Why? What has one thing to do with another?

Since these requirements must be fulfilled, it would allow the attorney to spend the time allotted to be spent in a CLE classroom resenting indigent defendants.

An unintentional truth?

To combat employer discouragement, tax incentives, or government malpractice subsidies should be awarded to firms or individuals that practice a large volume of pro bono work (judged as a percentage weighed against their billable hours). This would be subject to a governing committee that would review and grade the quality of indigent representation given. Financial incentives would be awarded based on both average quality and percentage pro bono hours. Finally, these benefits would be amplified for those that took on criminal pro bono cases instead of other categories of law.

In other words, we should spend public money on private lawyers to encourage them to use marginal effort to provide part-time non-professional criminal representation to poor people. Aside from the fact that this is actually a fancy Rube Goldberg form of "spend more money," which isn't going to work this way either, it isn't clear why this is a more efficient way to deal with the problem than "prosecute fewer poor people."

Because the implicit assumption here is that the criminal justice system is not yet large enough, and—no matter how it is disguised as a tax on lawyers followed by subsidies to lawyers—we need the State to make it bigger. Are we sure that's true, and how do we know?

"Moving closer" can be a synonym for "forgetting about the larger context." "Clarity" can come at the expense of comprehension.

Are you sure? Where did this definition come from?

Such rights come in many different varieties, they may be given by the constitution, granted by some social contract, or be natural consequences of humanity. Wherever the rights of the people come from, they have one thing in common: they cost money.

Once again, how did you know?

We're at the beginning of the essay, so we assume that what you've just expressed is the primary idea that the essay will develop. But this assertion doesn't seem to develop into anything. If it is true, the essay seems to have nowhere to go beyond. Perhaps the right step in the next draft is to bring the real central theme into view here, leaving whatever may be the case about the costs of justice to come second, rather than first.

This isn't any help unless "entitlement" is a less complex idea than "right," which it probably is not. If, in fact, it is the same thing (because a "title" is a "right"), then you haven't given a definition, only a synonym.

Once again, the reader can be expected to ask where you got this non-defining definition.

By itself, a right is nothing, an ephemeral concept that may or may not be realized. When a person argues for the right to bear arms, they are not advocating that everyone be given a gun immediately; they are arguing that people should be entitled to have a gun. When a person decides to go out and buy a gun, they are then exercising this right, and it becomes real. To further illustrate the nature of rights, imagine that our gun-enthusiast finds a police officer prohibiting entry to the gun store because he does not think people should be able to have guns. Consequently our gun-enthusiast goes the route of any American, and sues.

Why not use Hohfeld's approach, and say that a "right" is the benefit of someone else's legal duty? If you have a duty to pay me money, I have a right to receive it. If the Congress has a duty not to make laws abridging freedom of speech, then I have a right to freedom of speech free of Congressional enactments constituting abridgment. I have a right to bear arms only to the extent that government has a duty not to infringe by unreasonably limiting my carrying activities. Others may continue to do so, unless they have some other legal duty, general or specific, not to interfere.

In court, is where rights are determined.

How do we know that? If a right is the correlative of someone else's duty, it may be enforced or determined wherever that duty can be enforced or determined, which might be a court, but might be some other government institution. If we go beyond legal duties to consider other forms of duty giving rise to other forms of right, the possibility of enforcement or determination goes beyond governmental institutions, as it will if the duty is legal, but subject to, e.g. arbitration in the event of controversy.

Our gun-enthusiast must now match the best lawyer he can afford against whoever the government decides to send in support of its police officer. The judge will then decide whether or not our gun-enthusiast actually does have a right to bear arms. Once the judge has decided, and his decision has been enforced, and our gun-enthusiast is happy with his pistol, then it seems that his right to bear arms has become real. It is this process of the realization of rights that is expensive, and those that cannot pay for it often miss out. Rights belong to those who can afford them, and thus I reiterate: justice is expensive.

But you haven't shown that, you've just reiterated it. My clients don't know whether the enforcement of the legal duties of others that affect them is expensive, because they do not pay. Whether the businesses that pay me to protect my clients' rights consider it expensive to do so is uncertain; probably not, because pay they do. So whatever value they get from the enforcement of my clients' rights is worth more to them (even though the rights being enforced are not their own) than the money they are paying.

If you are indigent, what taxes are you paying that fund your prosecutor? When a wealthy person who does pay significant taxes is prosecuted, and uses her own money for her defense, not being eligible for public defense services, is the injustice worse because she is only paying for the prosecutor out of her tax money? This argument of yours seems to make no sense.

Why does it follow that the resources spent on investigating and proving beyond a reasonable doubt that a crime was committed and that the defendant committed it need to be equalized by the funds spent testing whether that burden has been successfully discharged in order for justice to be done? Have you successfully demonstrated, or seen it demonstrated somewhere you haven't mentioned here, that the criminal justice system can only achieve just outcomes when overall resources balance equally between the only prosecutorial service and one mode of defense, namely the public defense services? When a wealthy defendant far outspends the State's investment in the prosecution, is that also an injustice, to the People?

No. Only the State has a burden of production in criminal cases.

The better the lawyer, the more they cost.

How did you come to this conclusion? It seems to me patently untrue, and I know lots of lawyers. Might I be permitted to point out once again that my lawyers do not charge our clients anything? Yet I know them to be better lawyers than ones who earn far more than the salaries I pay them.

There are always exceptions, and occasionally there will be skilled lawyers that are available in the public defenders office.

What do you mean, "occasionally"? Do you mean you have checked, and almost all the lawyers who work for public defenders' services are unskilled, with "occasional" exceptions? And you have also checked, and only occasionally are ADAs equally unskilled? This is bushwah. You should meet some more lawyers on both sides, preferably in court, before opining that they're not skilled lawyers.

However, despite the superior prestige and advancement opportunities of the District Attorney’s office, they pay their attorneys very similarly to the public defender. Perhaps there is not a steep differential in skill between the attorneys at the two offices, despite there being no private sector alternative to the District Attorney’s office to lure away the lawyers with enough skill to be desireable to profitable firms and organizations.

This is wrong on both counts. Of course prosecutors (particularly "skilled" ones) can earn more money practicing elsewhere. The usual way to do that is to become a defense lawyer, oddly enough.

Luckily, although they may not have the edge in skill, they have the entire police force to help make “reasonable doubt” seem much less reasonable. Many public defenders offices rely on the defenders themselves to do the investigatory work. However, with the police department comes the forensics, the access to labs, the evidence that they discover, and the discretion of where to look for it. Many public defenders don’t even have enough time to spend thirty minutes on each case that they are assigned, it seems unlikely that they will be able to do much investigation on their own. Finally many defenses put on by public defenders have limited witnesses. They simply do not have the resources to locate tangentially relevant people that the defendant is not in contact with or that were not identified at the scene. Given the gross disparity of resources between the state defense and the state prosecution, it is hardly surprising that the majority of indigent clients unnecessarily plead guilty (for some examples of gross public defender misconduct just check the Innocence Project http://www.ip-no.org/exonoree-profile/darrin-hill).

A majority of defendants "unnecessarily" plead guilty? Are you suggesting that a majority of those pleading guilty aren't guilty? On what evidentiary basis have you come to that conclusion?

Doing routine criminal defense work? Are you claiming that there is any large law firm using its pro bono department to do routine criminal defense work? What evidence is there for such a proposition?

Thus many have implemented pro bono hours that can count towards associates’ billable hour requirement, some firms even electing to not have limits. Unfortunately, I have yet to find a law firm with available statistics on the turnover rate for attorneys that pursue “unlimited” pro bono hours to fulfill their billable requirements, however, I imagine they are not optimistic.

But what has this to do with anything? Surely you're not supposing that all the hours available for all the pro bono lawyering in even the largest of large firms would make a significant dent in the general criminal defense burden of the city in which such a firm practices? Did you do some back-of-the-envelope arithmetic on this subject you're not sharing with us to show that this could possibly be a relevant source of lawyer-time?

What does that mean? The social problem of securing sufficient resources for the legal representation of the poor is best solved by having some rich person or some rich few people want to solve it? Perhaps the way to do it is "from each according to his ability, to each according to his need"?

The basic problem in this draft was in the editing of the outline. As I've tried to show in the margins, the essay doesn't present your central idea clearly, spends time and space carelessly on subsidiary issues, and doesn't in the end close tightly on the parts of the argument that the reader needs your best thinking to find convincing. The next draft should reframe. Start from the central point you have to make. Introduce it clearly, in tight but accessible form, in a brief introduction. Develop the idea, showing what it rests on, how the reader can test for herself the strength of its support, how you deal with the most serious and productive objections. Then give a conclusion which shows the idea in its full context, and gives the reader a point of departure for further explorations of her own.

The Price of Justice

Paper Title

-- By BrianHooven - 25 Feb 2013

The Problem

Rights and the Courts

The Criminal Justice System

Problem Solved?

Society's Solution

My Solution

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