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Law in Contemporary Society
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The Price of Justice-- By BrianHooven - 25 Feb 2013 The problem with justice is that it costs money. When people can’t afford to pay, society tries to do it for them. Sometimes, this does not work, as illustrated by the indigent defense system. Criminal justice system is premised on an adversarial system where the prosecution carries a burden to prove guilt beyond all reasonable doubt, and an opposing force (the defense) illustrates possible doubts, at which point a judge or jury can make an informed decision concerning reasonableness. However, the indigent defense system is not provided sufficient resources to accomplish their role. This affects the majority of felony defendants, 80% of which draw upon state funded public defenders for representation (in the 75 largest US counties). (BJS: State Public Defender Programs 2007 http://bjs.gov/content/pub/pdf/spdp07.pdf). There have been efforts to improve the system, however, they still fall short. Much of the current unfairness of the criminal justice system stems from the imbalance of resources regarding personnel, caseloads, and funding between indigent defenders and their prosecutorial counterparts. In 2004 and 2005, 4300 state-employed public defenders were matched against 25,000 state-employed prosecutors. (BJS: Prosecutors in State Courtshttp://bjs.gov/index.cfm?ty=pbdetail&iid=1124; BJS: State Public Defender Programs 2007 http://bjs.gov/content/pub/pdf/spdp07.pdf). Additionally, public defender offices suffer from a support staff deficiency. State public defender offices have one investigator for every six litigators while prosecutorial offices have one investigator for every three litigators in addition to 98% having direct access to their entire corresponding police department. (BJS: Prosecutors in State Courtshttp://bjs.gov/index.cfm?ty=pbdetail&iid=1124). The out-manned public defenders are also overburdened. Their median caseload is far in excess of the official recommendation, a lofty 200 misdemeanor and 75 felony cases. (BJS: State Public Defender Programs 2007 http://bjs.gov/content/pub/pdf/spdp07.pdf). Prosecutorial offices also receive significantly more funding ($4.9 billion in 2005), while public defender programs could spend only $830 million defending the accused clients. (BJS: State Public Defender Programs 2007 http://bjs.gov/content/pub/pdf/spdp07.pdf;BJS: Prosecutors in State Courtshttp://bjs.gov/index.cfm?ty=pbdetail&iid=1124). The combination of inadequate resources and excessive caseloads creates a necessity to minimize per case expenditures in terms of both time and money. 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. 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 approach is somewhat promising, but alone will not be enough. 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. The first can be accomplished through increasing the available resources, which will allow a more appropriate per-case effort. Several mechanisms can help to achieve this: first, the caseload limits need to be rules, not recommendations. 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. 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. 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. 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. Although these measures will not solve the problem, they will begin to approach a solution. When we look far in the distance, only by moving closer can we see it more clearly.You are entitled to restrict access to your paper if you want to. 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