When states charge for public defenders, poor defendants are doomed

When states charge for public defenders, poor defendants are doomed

The Guardian

We usually lay blame at the feet of wardens and corrections officers for inmate recidivism. They didn’t offer enough treatment. The staff is abusive. Prisoners are discharged without education or job skills.

But the creeping trend toward requiring indigent defendants in the US legal system to pay for public defenders proves that recidivism starts before any defendants even hit a correctional facility – and that it springs directly from the process that was designed to defend them. They receive substandard representation that essentially guarantees convictions and incarceration. They are saddled with the bills for this representation and incarceration and then it becomes a crime not to pay them.

Related: Donate blood or go to jail: when did US judges become vampires? | Steven W Thrasher

Since 1963, when the US supreme court decided Gideon v Wainwright , any defendant who can’t afford an attorney is entitled to have one appointed to protect the right to counsel as provided in the sixth amendment of the US constitution.

While the phrase “absolutely free” doesn’t appear in any of the supreme court decisions on the right to counsel, neither do the phrases “at cost” or “on layaway”. Public defenders are supposed to be appointed at no cost to the defendant – not because of a legal requirement, but out of fairness and common sense, to give everyone equal access to the justice system.

Yet 43 states charge indigent defendants for the cost of their counsel. This might not be as galling if the representation rendered to clients were adequate, but it’s not.

I know this firsthand. During my epic journey through the justice system, public defenders were appointed for me. After receiving substandard representation from attorneys who were paid to represent me, I refused to pay for another one, mostly because I was as indigent as it gets; I made $1.75 per day in prison.

Of the four public defenders who represented me – in Connecticut, which has a statewide defender system – my appellate counsel never retrieved the file from my trial lawyer, so she had no idea of what to write in her appellate brief; a trial lawyer in one case “never saw” exculpatory phone records that were in the file provided to him by the prosecutor, and my habeas corpus counsel received funds for an expert witness – his friend – who was paid but never testified for me.

In my experience, most of the services provided by appointed counsel are substandard. It doesn’t matter whether their poor performance comes from the fact that they’re overworked, disillusioned or just plain lazy; the defendant still gets cheated out of a constitutional guarantee. I think the only reason why there hasn’t been a revolt by indigent clients in Connecticut against appointed counsel is that we don’t have to pay for them – we weren’t cheated out of money along with our rights.

But defendants in other states have to pay for this representation. In fiscal year 2012, defendants in Alabama paid $4m for their substandard representation; millions more remain outstanding. Despite the fees, in the 14 – out of 41 – counties that have formal programs for providing representation to poor defendants, the attorney failed to file one motion in 72% of felony cases. In 99.4% of cases with appointed counsel, the attorney never asked for funds for investigation, which means he didn’t conduct one.

Louisiana, a state where a public defender publicly copped to providing ineffective assistance of counsel in an op-ed for the Washington Post entitled I’m a Public Defender. It’s Impossible for Me to Do a Good Job Representing My Clients , finances its public defender system through fees and court costs, which explains why they had to refuse clients in 2007 and 2012 because they lacked the funds to pay lawyers. Very few people can afford to pay for counsel, which is why it was appointed in the first place.

Public defenders are more effective than any police informant in setting up defendants. By not defending their clients adequately and then allowing the state to bill them, they position defendants to fail. If you ask me, defender systems are the new offenders.

guardian.co.uk © Guardian News and Media 2015

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