Legal Representation for the Poor: Can Society Afford This Much Injustice

A New Yorker cartoon depicts a lawyer facing his client, asking the critical question: "You've got a pretty good case, how much justice can you afford?" Of course, the promise is equal justice for all. But that is an aspiration, not reality. The poor person accused of a crime cannot afford any justice. So how much justice is society going to provide? Competent counsel for the accused, with the resources needed for investigation and consultation with experts, is essential for the proper working of our adversary system of justice. States can afford to provide high quality representation for the accused--appropriate for the high stakes involved: liberty or even life--but most states are not willing to provide a decent level of representation for poor people accused of a crime. The result in many places is a system that lacks legitimacy and credibility, sometimes does not provide reliable results, and, on occasion, produces great miscarriages of justice. The criminal justice system is overwhelmed. In the 1970s, there were about 200,000 people in prisons and jails in the United States. (1) That number had held, relative to the population, pretty steady throughout our history. (2) Then over the next forty years there was an increase of 800 percent, (3) so that today there are 2.3 million men, women, and children in our prisons and jails. (4) The United States now has the highest incarceration rate of any country in the world. (5) During this time, the federal government has awarded millions of dollars to state law enforcement agencies and state prosecutors. When a federal grant is made to create a drug task force or some other law enforcement agency, more people will be arrested. They will need lawyers when they are prosecuted in the criminal justice system. At the same time, state legislatures throughout the country, which never funded indigent defense adequately to begin with, have not even begun to keep up with this huge, crushing number of cases that were dumped on the state courts. And the courts have often failed in their responsibility to enforce the Sixth Amendment right to counsel. When they have enforced that right, many have done so grudgingly. The people who have made the right to counsel a reality in this country and in Missouri are public defenders and other lawyers who have taken on cases and represented the poor despite overwhelming caseloads and inadequate resources. They have worked long hours under the immense pressure of having people's liberty--and sometimes people's lives--in their hands. I have been to Missouri many times over the last 30 years and have great respect for its public defenders. They take on great challenges and do heroic work. (6) People working in all positions in public defender offices are to be commended and thanked for the work that they do. It is sometimes a thankless job. There are many times when one cannot help but say, "Can this cup be passed?" And yet, they stay with it year after year and share their expertise with younger lawyers who come into the system, as well as with the clients that they serve. Public defenders all over this country face excessive caseloads. I had the good fortune of serving as a public defender in an office where that was not a problem. If a lawyer had too many cases, she could decline any new cases until some of her cases were resolved. That was because in 1969, Barbara Babcock (7) and Norman Lefstein8 started the Public Defender Service of the District of Columbia. (9) It has been, and continues to be, an exemplary program that demonstrates what public defender offices should be like, with reasonable caseloads, an outstanding training program, investigative services, and resources for experts. (10) Unfortunately, the kind of representation provided by the District of Columbia Public Defender Service is not provided to those accused of crimes in most state courts, where the overwhelming majority of people accused of crimes are prosecuted. …