Indigent Defense - A Poor Measure of Justice

By Gould, Jon B. | Judicature, November/December 2008 | Go to article overview

Indigent Defense - A Poor Measure of Justice


Gould, Jon B., Judicature


There is little justification for a substandard system of indigent defense other than the desire to keep taxes down.

Editor's note: With this issue judicature begins what we hope will be a regular feature. The goal of "Devil's advocate" is to prod the courts and the courts community to consider important issues that are being left unaddressed. Unlike the longstanding "Viewpoints" column, "Devil's advocate" is intended to be more relevant in policy debates. Essays do not necessarily reflect the position or policies of the American Judicature Society.

Readers (bodi insiders - judges/ court employees, and outsiders - academics/otiiers) are encouraged to submit essays of about 1500 words for consideration. Responses to published essays are also encouraged. Please send to drichert@ajs.org.

In the last issue of Judicature, I argued that the federal courts require a "'devil's advocate' to encourage them to consider questions of distributive justice."1 Quoting court staff who claim that the "federal courts have 'become timid,' 'afraid of stirring up controversy,' or 'raising questions about whetiier die law is fairly administered,'" I urged the courts' community to spend as much time and attention considering the distributive effects of judicial decisions as its members currently do addressing such "safer" topics as procedural rules or case administration.

In the wake of that article, Judicature's editor offered me the opportunity to amplify the argument in this, the inaugural column of "Devil's advocate," for the federal courts are far from the only judicial institution hat can be painted with the same brush. Working with judges and court administrators across the country, I have detected a disturbing, growing sense of complacency among the larger courts' community. It's as if the courts are "burrowing in," protecting positions, jurisdiction, and privilege rather than questioning whether, in fact, their procedures and operations effectively and efficiently provide justice.

In the courts' defense, one might say that judicial leaders are "hunkering down" in a period of economic downturn, protecting core functions and putting off new initiatives until government coffers begin to fill once more. Certainly, Judicature's last editorial ("An impending crisis in state court funding," September-October 2008) noted the problems of declining state appropriations for the courts. But even there, the editorial focused on rising caseloads as the number of court staff and judgeships remain static or shrink. These are important questions, but they have the courts looking inward, asking what budget cuts will do to heir staff and operations, rather than looking outward to consider what the distributive effects may be of service cuts to the courts' larger constituencies. Indeed, if there is one group that has the most to fear from tight judicial budgets it is indigent defendants and, even more, those defendants who otherwise would face the risk of prosecutorial overcharging or an erroneous conviction.

Substandard representation

Even in flush economic times indigent defense has been problematic. Whether by capping compensation for private attorneys or tolerating high case loads for public defenders, many states have been content to relegate indigent suspects to substandard representation. Of course, there is no constitutional right to equal resources in criminal cases, nor should the state be required to provide the Cadillac of attorneys to defendants when a smooth-running Chevy will do. But in states like my own indigent defendants have not even received a rusted-out Yugo. Consider that a defendant can be sentenced at trial to 19 years in prison in Virginia while receiving less than 7 hours of attorney time.2 It is simply inconceivable that judges would permit "justice" to be rendered in dieir courtrooms when the defendants are represented by attorneys who are not paid sufficiently to do more than read a case file and appear for a hearing. …

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