Civics 101: The Sixth Amendment says that anyone charged with a serious offense has a right to counsel. That's been clear since the Supreme Court decided Gideon v. Wainwright back in 1963. And it's not just any old lawyer. Counsel must be effective, competent. The standards, set in 1984 in a case called Strickland v. Washington are too low, but they exist.
So the government (and for most criminal prosecutions that means state government) has an obligation to provide competent counsel for those people charged with even slightly serious crimes who can't afford to hire their own attorney. (That's most people who are charged with those crimes, of course; crime is closely connected to poverty through it perpetrators, its victims, and its consequences.)
Nobody much disputes that government has that obligation. But nobody much wants to pay for it, either. The result is that public defenders are seriously underpaid and seriously overworked. There isn't enough money to hire enough lawyers (and give them the resources - investigators, experts, paper clips for godssake) to do the job right.
In too many cases, far too many cases, the clients are processed rather than represented. Pleas are coerced by lawyers who don't have time to investigate. Cases that don't plead out quickly languish far too long - often with clients in jail - because there's no time. Trials are badly done because cases are badly investigated and hastily put together because there isn't the time and aren't the resources to do the job right. The result is that innocent people spend long chunks of time in jail and, too often, in prison. Guilty people who should receive probation or very short sentences do long time. Vast sums of money are wasted incarcerating people who shouldn't be incarcerated.
And the Constitution, you remember the Constitution, lies ignored when it isn't tattered.
I don't mean to pick on public defenders. They are almost uniformly dedicated, brilliant, hard working, caring. They're terrific lawyers. But they too often have an impossible job that we refuse to make possible. They simply don't have the time or the resources to do their jobs the way they should. It's a real crisis, this important report issued by the Constitution Project back in April and this important story from the AP give it some life.
There are three things I need to say:
- Some problems you can make better by throwing money at them. This is one of them.
- The truly extraordinary thing is that public defenders actually provide, a very significant portion of the time, absolutely superb representation.
- Dumping the work on the private bar is no solution. Court appointed counsel are as badly underpaid as public defenders - worse in many cases where the pay actually fails to meet their overhead; they have no more (and often less) in the way of resources; they haven't the training or the institutional support of public defenders. And yet many of them, too, do superb work.
And then tell her that she was denied her constitutional rights, and that if she's ever arrested again it will probably happen again, but, hey, nobody cares.