Public Defense, or Public Incarceration? In 1853, in an undoubtedly stifling-hot room of the Indiana Supreme Court, a judge delivered

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1 1 Public Defense, or Public Incarceration? In 1853, in an undoubtedly stifling-hot room of the Indiana Supreme Court, a judge delivered the court's opinion: It is not to be thought of in a civilized community... that any citizen put in jeopardy of life or liberty should be debarred of counsel because he is too poor to employ such aid. No court could be expected to respect itself to sit and hear such a trial (Webb v. Baird 16). At the time of the ruling, the constitutional right to counsel, provided by the Sixth Amendment, was applied only to federal cases. Although the previous court's opinion was poignant and official within the state of Indiana, the ruling given did not establish the right to counsel in state cases. In state criminal cases, the right to counsel on all felony crimes would not be established until 110 years later, in the critical Supreme Court ruling of the case Gideon v. Wainwright (340). Twenty-two criminal defense attorneys, all of whom already offered their services pro bono to indigent clients in an attempt to protect justice, joined the defendant, Clarence Gideon, in arguing his case before the nation's highest court (319). They claimed that defendants, even poor defendants, had a right to counsel under the Constitution, whether jurisdiction of the case be federal or state. The court's decision was unanimous: nine in favor, none opposed (339). The judicial system gained undniable integrity due to the Gideon ruling; after all, could you provide an adequate defense for yourself in court? Most anyone would readily admit that the law is much too complex for a person who is not a lawyer in practice to defend themselves. But today, a new set of obstacles challenge our Sixth Amendment right to counsel. The disparity of resources between public defenders and state prosecutors has grown so large, and defenders are so overburdened, that indigent counsel is no longer adherent to the Sixth Amendment; the states must fund public defenders appropriately, and enforce reasonable caseload maximums, in order to stop marginalizing minorities and the poor in America. Overburdened and underfunded public defenders do not fulfill the requirements of the Constitution in criminal proceedings. The U.S. Constitution states only one command twice: the Fifth

2 2 and Fourteenth Amendments state that no American citizen shall be "deprived of life, liberty or property without due process of law". The Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense and a right to counsel without showing of prejudice (U.S. Constitution). Today, state public defenders are readily available and widely utilized. What is of growing concern is their ability, or inability, to serve the public effectively. Although citizens have access to counsel, the public defenders at the disposal of the indigent experience under-funding so extreme that it may circumvent their purpose, and render them inadequate. Consequently, the judicial system itself would become discriminatory toward these groups. Some feel as though public defense is more symbolic than significant. Many consider that those who are charged with crimes are guilty. Therefore, quality of representation becomes inconsequential. Many will agree that mistakes must be made in accusations and arrests, but surely prosecutors do not imprison innocent people. Beyond the scope of a rare and unfortunately grave oversight, the system must be largely just. The reason for which Americans are so confident in the surety of their legal system is that it possesses many safeguards against wrongful imprisonment. These safeguards include practices such as the burden of proof being on the prosecution, as well as the legal provisions granted in the Bill of Rights. These constitutional protections set American law apart from many judicial systems found around the world. This confidence in American justice is the principle behind expressions such as every man gets his day in court. In fact, very few people charged with crimes ever go to court for more than an arraignment, a plea, and sentencing. In most cases, the state will not ever be required to prove their case, because in most cases, there will never be a trial. Only four percent of state criminal proceedings go to trial: all the rest end in plea bargains (Silsby 1). For example, when a person refers to a felon and says to him- or herself, Well of course that person was guilty! They were proven guilty in a court of law; that is why

3 3 they were in prison. In truth, any given convicted criminal has likely never been proven guilty by anyone. Despite these facts, it is trusted that a defendant would not plead guilty if they were not in fact guilty. However, the government has confirmed through a recent publication that nine hundred prisoners have been exonerated of serious crimes since 1989 (Seward 1). Experts argue that the number is more like two thousand, although other obviously qualifying cases have selectively not been included in the registry (1). Almost twenty percent of these cases included false confessions, and at least twenty-four percent of them were plea bargain convictions; forty-four percent of the exonerated persons in the registry either pleaded guilty or confessed to a crime they did not commit (1). Apparently, innocent people both confess and plead guilty. In a talk at the University of Southern California this past April, former criminal defense attorney, and now State District Judge, the Honorable Jed Rakoff, explained why innocent people plead guilty: Plea bargains have led many innocent people to take a deal. People accused of crimes are often offered five years by prosecutors or face twenty to thirty years if they go to trial (Silsby 1). When facing such long sentences, and when armed only with an underfunded, overburdened public defender, the decision of a person to plead guilty to a crime that he or she did not commit becomes a seemingly logical one. But how inadequate does a defense attorney have to be in order for that defense to be considered insufficient? The disparity in resources between public defenders and state prosecutors is such that no claim of justice can be made. The average caseload of a state prosecutor is seventy-five cases per year (Perry and Banks 2), while that of a public defender stands at a staggering 375 (Farole and Langston 3). Experienced litigator and elected official of The Fellows of the American Bar Association, Laurence A. Benner, explains: Caseloads are so excessive that in many jurisdictions, defense counsel are unable to perform core functions, such as conducting an adequate factual investigation into guilt or innocence. In

4 4 Tennessee, six attorneys handled over ten thousand misdemeanors annually, spending on average less than one hour per client (1). Funds available to public defenders to prosecute their cases, in order to process evidence, conduct research, and enlist the help of experts, averages $412 per case (Farole and Langston 3). The budget of a state prosecutor is six times as much; almost five billion dollars a year is spent on prosecuting their cases (Perry and Banks 4). But for all of the cases a public defender litigates, his or her average salary is a mere $48,000 (Farole and Langston 13), while that of a state prosecutor is nearly twice as much (Perry and Banks 2). Disparity in public defense creates large-scale discrimination against the poor, but also against minorities. The relationship between race, poverty, and alleged criminal activity is ample and abhorrent. Public defender Michael Smith explains: Fewer than ten percent of the people in the area I serve are black, but over ninety percent of my clients are black (Smith 1). There exists a staggering racial imbalance in the justice system, where African Americans constitute only fourteen percent of the American population but represent forty percent of American prisoners (Smith 2). Also imbalanced is the number of African Americans who request the services of public defenders, as Smith described (1). This is in large part due to the quantity of African Americans living in poverty in the country: thirtyeight percent nationwide (Benner 2). Today, Black Americans are incarcerated at a rate six times that of White Americans (Benner 2). The ripple effect of inadequate public defense touches nearly every aspect of the nation; the consequences are social, economic, and political. The economic effects of mass-incarceration are grave: more is now spent on prisons than on higher education (Justice Policy Institute 1). The Justice Policy Institute contends that increasing funding of public defenders would save millions in corrections expenditures (1). However, the true costs of mass-incarceration exceeds the price of operating correctional facilities. When a key, wageearning family member is incarcerated, his or her family may often need to apply for government

5 5 subsidies. Abandoned children can find themselves in need of foster care. Furthermore, not only are housing, guarding and caring for prisoners costly, but these expenditures are in addition to the loss of the individual's economic contribution to his or her community, were he or she not incarcerated. These situations refer not only to case numbers, but to human lives. The U.S. Constitution and natural laws dictate that all human lives are of equal value, and yet, the freedoms of some are retracted more inconsequentially than those of others. These situations refer not only to solitary human lives, but to entire social structures. The sentences in these cases rip apart families and neighborhoods. Children whose parents are incarcerated are highly more likely to be incarcerated themselves. It has been understood that these proceedings of poverty, under-education, and incarceration are entirely cyclical; they continue, for the most part, uniformly from generation to generation. A discriminatory criminal justice systems leaves vast social structures marred and mangled. When marginalization of this kind is permitted to concentrate within a specific demographic group, the result is today s socio-economic crisis affecting the Black American community. This epidemic of inequality is the fated consequence of hundreds of years of iniquitous discrimination. These situations refer not only to the social structures of a few, but to the well-being of all people. The world today is a global community, in which all people impact each other personally, economically, environmentally, socially, and politically. Equitable resources for public defenders is vital in order to halt the progression of a systematic, large-scale marginalization of minorities and of the poor. In order to claim just representation, and compliance with the constitutional rights of American citizens, public defense must be adequately staffed and funded. The caseloads of attorneys of both the defense and prosecution must be comparable, and within the realm of what an attorney can be expected to successfully manage. Funding toward case expenditures must also be comparable, so that both sides are able to provide depth and weight to their arguments. Also, lawyers must be paid adequate salaries; the office of the public defender cannot not be treated as one of charitable vocation for those seeking to preserve the justice system on behalf of the

6 6 American people. It would be unreasonable to expect that perfectly equitable funding for indigent defense and state prosecution might exist, but the gap must be narrowed significantly. Until such corrections to funding and policy are made, the legitimacy of the American legal system continues to plummet below the lowest of standards; with current black and low-income conviction rates, citizens can no longer pretend to have justice in the judiciary. With more citizens incarcerated than any other country, America can hardly continue to throw around the phrase Land of the Free. John Adams, with all of his foresight, said of the defense of innocence: It is more important that innocence be protected than it is that guilt be punished. [I]f innocence itself is brought to the bar and condemned... to die, then the citizen will say, 'whether I do good or whether I do evil is immaterial, and innocence itself is no protection,' and... that would be the end of security whatsoever (1).

7 7 Works cited Benner, Laurence A. When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice. Issue brief. Washington: American Constitution Society, Print. Farole, Donald J., Jr., Ph.D., and Lynn Langston. County-based and Local Public Defender Offices, Rep. no Washington: Bureau of Justice Statistics, Print. Gideon v. Wainwright. 372 U.S Supreme Court. 8 Mar Print. Justice Policy Institute. Overloaded Public Defense Systems Result in More Prison Time, Less Justice. Justice Policy. N.p., 27 July Web. 6 Oct Perry, Steven W., and Duren Banks National Census of State Court Prosecutors. Rep. no Washington: Bureau of Justice Statistics, Print. Seward, Chris. "Researchers: More than 2,000 False Convictions in past 23 Years." NBC News. News & Observer, 21 May Web. 6 Oct Silsby, Gilian. "Why Innocent People Plead Guilty." Editorial. USC News.18 Apr. 2014: 1. USC News. University of Southern California, 18 Apr Web. Smith, Michael. "Confessions of a Public Defender."American Renaissance. American Renaissance, 9 May Web. 6 Oct U.S. Constitution. Amend. X. Amend. XI. Amend XIV, Sec. 1. Webb v. Baird. 6 Ind. 11. Indiana Supreme Court. 13 May Print.