Sunday, May 15, 2005

Indigent Defense

Neither Simple Nor Easy

You know, a while back I imposed on Gideon, the Connecticut. PD who runs "a Public Defender" blog (here) with a huge quasi comment (see here. Scroll down, you'll find it.) on the sad state of indigent defense (that is, the provision of same, not the quality) everywhere you look, and it occurred to me, Why am I not posting this on my own blog? What the heck is wrong with me? So, here are some of Mr. DA’s thoughts on indigent defense and related topics.

First off, what the heck is "indigent?" Well, so far it’s primarily an adjective, but the noun form seems to be gaining acceptance, especially in legal circles. Most dictionaries I’ve looked at tag "indigent" as an adjective, (see, for example, the listings at the Onelook: General Dictionary Sites page) but a few add the noun form as a second definition. One example: "adj. 1. Experiencing want or need; impoverished. See Synonyms at poor. . . n. A needy or destitute person." American Heritage Dictionary of the English Language (3d Ed). Some add the qualifiers ‘very’ or ‘extremely’ to poor and/or needy.

So, in law speak, indigent defense is the defense of very/extremely poor/needy people. Seems clear enough at first blush. But. . .
  • What is ‘indigent?’ That is, how poor is very/extremely poor?
  • Once we know that, how do we determine if a given defendant is, in fact, indigent?
  • And who decides if a particular defendant is indigent?
  • Who represents the indigent defendant? Obviously, an attorney, but which attorney?
  • How does that attorney get compensated? Or do we impose the duty to represent indigent defendants on the members of the bar as a mandatory pro bono publico activity. Sort of an "in kind" element of their bar dues. Abraham Lincoln said an attorney’s time and advice are his stock in trade. Is it fair to take that time and advice without compensation? Is there a Fifth Amendment problem here?
  • If we are going to pay attorneys to defend the indigent, how much are we going to pay them?
  • And who, exactly, is ‘we’ in this context?

The place to really start is the Supreme Court's 1963 decision in a case called Gideon v Wainwright, 372 U.S. 335 (1963). For a detailed review of this opinion take a look at the entry at LandmarkCases.org for a copy of the opinion itself and lots and lots of additional material. The site is designed for teachers, primarily at the high school/junior college level, so there is a wealth of detail that isn't normally presented in discussions of Gideon. I particularly like the "Evolution of a Decision" activity. It takes you from Powell v Alabama to Betts v Brady to Gideon to Argersinger v Hamlin that considered whether the Sixth Amendment right to counsel applied to misdemeanors as well as felonies.

Well, that should keep you busy for a while. More, later.

17 comments:

Gideon said...

I was going to post a comment in furtherance of this discussion - but I realized I had a fair bit to say. So I turned it into a post, like you did :)

Mister DA said...

You sly dog, you! [-)

Gideon said...

Aah! Sorry. Basically, I said that since the Fed. Poverty Guidelines are used by some (if not most) states as the cutoff for determining indigency, perhaps there should be a more detailed, analytical study of whether those guidelines are, in fact, adequate indicators of indigency. It seems to me that the current level ($9,570) is woefully inadequate, given debt levels, so perhaps that should be taken into consideration.

To decide the actual level should perhaps be the job of individual legislatures, taking into account cost of living in their respective states.

Gideon said...

Aah! Sorry. Basically, I said that since the Fed. Poverty Guidelines are used by some (if not most) states as the cutoff for determining indigency, perhaps there should be a more detailed, analytical study of whether those guidelines are, in fact, adequate indicators of indigency. It seems to me that the current level ($9,570) is woefully inadequate, given debt levels, so perhaps that should be taken into consideration.

To decide the actual level should perhaps be the job of individual legislatures, taking into account cost of living in their respective states.

Tom McKenna said...

I always like to go back to these seminal opinions like Gideon v. Wainwright and compare them with what the constitution actually states. All the Sixth Amendment says is "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense."

It does NOT say that the "indigent" have a right to a taxpayer-funded lawyer.

That "right" had to be invented by the Court by using that famous refuge of activist judges, the 14th Amendment, which (unbeknownst to its framers, who thought they were simply guaranteeing that whatever procedures protected white citizens at law must also protect black citizens) guarantees due process of law to state citizens. The 14th of course has been used to "find" all kinds of hitherto unknown rights, such as "privacy" (contraception/abortion)and sexual expression (sodomy at least)

Which is not to say that the indigent having free legal advice is a bad idea... but it's one that should derive from the will of the people, not a Court stretching beyond recognition the plain words of the constitution.

Gideon said...

I'm not sure how you can see the two and conclude that it cannot be interpreted to mandate court-appointed lawyers for those who cannot afford them.

If the Constitution states that "all accused" shall have the right to be represented by a lawyer, and if a certain percentage of the accused cannot afford them - either because they are poor or because lawyers charge too much, then what are we to do?

Oh, I know - let's not prosecute them! As in LA. Would you like that?

Are you saying there is no right to privacy as well?

Also, there are a number of states that DO mandate, either via their Constitution or statute, that indigent defendants be provided counsel.

Tom McKenna said...

That's just my point... the states can choose to vindicate this "right" by providing for indigent defense in their own constitutions or statutes. It defies common sense however, to suggest that the sixth amendment mandates something that apparently no one (least of all its framers) imagined it mandated until 1963.

The framers meant what they said and no more... that you have a right to counsel and cannot be tried and convicted if you want to have an attorney; the court cannot deny you counsel. That is different than saying the court must provide you counsel. Even the Supremes realized they could not twist the 6th amendment to include an affirmative duty to provide counsel, so they had to turn the last refuge of judicial scoundrels, "substantive due process" under the 14th.

Again, just because an idea strikes us as good does not mean the constitution has to be construed to mandate it.

Gideon said...

Ok, let me ask you this:

Would you agree that the 6th Amendment guarantees counsel for indigent defendants in FEDERAL court? Because the 6th does state "in all criminal prosecutions"; not just in criminal prosecutions where the defendant has money.

I have a pretty lengthy post on this topic going online on my blog. It should be up in about half an hour.

Seth Abramson said...

Tom,

I'm a public defender from New Hampshire, and I'm curious: where in the U.S. Constitution do you find support for your notion that the Sixth Amendment, inasmuch as it establishes a "right" (not a "privilege" or a "license") applies only to those who can afford it? What does a "right" mean if it is interpreted as you interpret it, i.e., as a right*

*only if you can afford it

with no legal force or practical meaning whatsoever behind it?

Your reading of the U.S. Constitution seems to imply that the purpose of the Sixth Amendment was to prevent the government from barring attorneys from trials; do you have any textual evidence to support the notion that that was the fear of the Founding Fathers in 1789? Isn't the more likely interpretation of the Sixth Amendment that "right" means "right," as it does in every other place in the U.S. Constitution? Was the application of Gideon v. Wainwright to the states judicial activism, or among the most commonsensical consistent-with-the-Constitution no-brainers in the history of the common law? Frankly, I had assumed the latter until I saw your post, but see nothing whatsoever in your post which would dissuade me from my view.

Finally, given your absolutely remarkable view of the Fourteenth Amendment, do you disagree with the foundational legal principle that (in paraphrase) "the protections of the U.S. Constitution establish the floor for all state constitutions"? By that indisputable principle, the Fourteenth Amendment had to provide state-level defendants with the protections of Gideon v. Wainwright, unless that case had been based on administrative law rather than the Sixth Amendment (which it wasn't).

What am I missing here? This seems like a somewhat frivilous dialogue, frankly. Sure, the states can choose to set their own levels for "indigence," but a case like Bearden v. Georgia or (in New Hampshire) State v. Fowlie makes fairly clear that to the extent those administrative regulations do not reasonably protect the rights of the indigent accused to get an attorney--a pretty simple calculus, if you think of it: "Does Joe have enough money to hire the least-expensive criminal defense attorney available, or not?"--I'm not sure this residual, rather esoteric question makes this issue anything like a barn-burner.

Seth

Seth Abramson said...

P.S. Tom, you're confusing a "right" with an "irrevocable license." The Founders didn't give Americans an "irrevocable license" to find an attorney and haul him into court for purposes of trial representation, they said that every citizen had a "right" to have an attorney standing next to them in court on the day of their trial. Do you really think the Founders intended the nonsensical result of having a "right" in the Constitution which was pragmatically unenforceable? [I.e., because the lawyers in a given town might cost too much; because the lawyers in a given town might all refuse to take the case; because there might be no lawyers in the town; because all the lawyers in the town might be conflicted; because there might be no lawyer in town with the requisite knowledge or skill to handle a criminal, as opposed to non-criminal case; and so on].

Where in the world do you locate "common sense" in your argument, Brother, let alone a Constitutional prescription/proscription?

Seth

Tom McKenna said...

Seth: in reference to the purpose of the 6th amendment, and why it was not until the activist Warren court that it was found to mandate state-paid attorneys-- Amazing as it may seem to us, at common law there was not even a right to have an attorney if you wanted one, even in capital cases!

As the learned constitutional historian Joseph Story commented upon the 6th amendment:

"Another anomaly in the common law is, that in capital cases the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses, or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This, he says, is 'a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which is yet allowed him in prosecutions for every petty trespass.' The defect has indeed been cured in England in cases of treason; but it still remains unprovided for in all other cases, to, what one can hardly help deeming, the discredit of the free genius of the English constitution."

Thus, the purpose of the 6th was to guarantee counsel, not to mandate that it be provided by the state.
Again, if it's a good idea to have the state provide counsel for the indigent, the decision should be made by the people, not interpreted into the constitution where it does not exist.

As I mentioned before, even the Warren court knew they could not honestly claim to "find" a right to state-funded defense attorneys in the 6th amendment. Hence their use of the 14th, which, just like the 6th, was not intended to be a blank slate for 5 justices to write their policy preferences on to.

As to the 14th, suffice to say, if "incorporation" was intended, it took a long time for the Supremes to figure it out, since (just as one example) the Court in 1879, in Ex Parte Virginia, wrote:

"It is not said (by the 14th Amendment, that) the judicial power of the general government shall . . . be authorized to declare void any action of a State in violation of (its) prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation"

Indeed section 5 of the 14th specifically vested enforcement in Congress, not the courts. This is why it took so long for the Court to "find" "incorporation" in the 14th... no contemporary court could have gotten away with it.

Anonymous said...

There are 2 types of poverty. Absolute and relative. Absolute poverty refers to those in Africa, etc. and relative poverty refers to the comparison of the assets, etc of those around us. The national average for a single person, or a single parent with one child is $34,000 (2006). The per capita income in the US is 23,000 and in Mass is $25,000. People are not doing the math about what it really costs to live. There is such ignorance in this matter. It is recommended by HUD (Housing and Urban Development that we should only be paying 1/3 of our salary on housing, when in fact, most people are paying 50% of their salary on rent alone. So, for example, if a person pays $1,000 for rent per month, $12,000 per year, then that person should make $36,000 per year. Employers are not and have not been paying people what they are worth even when the economy was doing good. Employers are paying people salaries that are over 30 years old. A single person cannot afford to live, neither can a single mother with a child or children. So indigent, when some intelligent person, does the actual math of what it REALLY costs to live will realize that people getting below $17.00 an hour cannot afford to live. Wake up people. Then when the legal system gets their dirty hands on poor people and then tries to make them pay what they don't have, it takes away from children and families and people are starting to be put away for unable to pay, and the courts are not waiving court costs and fees based on the actual numbers to survive. Take family court, for instance. Poor people are continually being forced to pay money they don't have. What is Cost Containment office doing with their indigent defense fund money, and not allowing people to access that money who are indigent? They are blood-suckers and the court is putting burdens on people that can't even afford to live, yet are making them pay for GAL's when the court ordered this service in the first place. It seems like our country is going backwards to the day when people are being thrown in jail for being poor. Shame on the judicial system! Shame on our country and for the lack of compassion.

ankur said...

Thanks for this post . i have read the entire article. It is simply awesome...
I'm not sure how you can see the two and conclude that it cannot be interpreted to mandate court-appointed lawyers for those who cannot afford them.

If the Constitution states that "all accused" shall have the right to be represented by a lawyer, and if a certain percentage of the accused cannot afford them - either because they are poor or because lawyers charge too much, then what are we to do?
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