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Tags: sixth amendment | counsel | crime | sentencing

The Sixth Amendment and the Crisis of Counsel in America

The Sixth Amendment and the Crisis of Counsel in America
(Alan Crosthwaite/Dreamstime.com)

Hannah Cox By Friday, 13 September 2019 12:58 PM EDT Current | Bio | Archive

While the death penalty is pretty randomly enforced (with the location of the crime being the largest determinate in sentencing), there is one thing most capital cases have in common — inadequate representation.

Most Americans know they have the right to an attorney guaranteed by the Sixth Amendment. But what they may not know is how long it took for that right to be applied to cases beneath the federal level, or what quality of representation that entitles them to.

It wouldn’t be until 1963 that a U.S. Supreme Court case, Gideon v. Wainwright, would extend the right to counsel to all indigent criminal defendants charged by the states.

While Gideon gave the command, it did not give orders on how to provide such representation or pay for it (both actions would be well outside the court’s purview). And if it seems like it took the application of the law a long time to catch up to the Constitution’s intent, it took even longer for states to catch up to the law.

There still is no uniform protocol for how state and local governments provide attorneys to those who cannot afford them. Some use contract attorneys, some have public defender offices, and others appoint attorneys. Who pays for these services is also up in the air with the county, state, or some combination of the two usually on the hook for the bill.

Though indigent defense systems have increased drastically since Gideon, many of these departments still struggle to finance their work. As “tough on crime” policies led to the incarceration rate quadrupling, and 90% of defendants qualify as indigent, these offices have struggled beneath the weight of the system.

While specific data can be a bit scant, a 2009 report from the Center on Budget and Policy Priorities states that “at least 47 states faced or are facing shortfalls in their (indigent defense) budgets this year or next.” And a 2008 estimate from the American Bar Association said state and county governments spent a total of $5.3 billion on indigent defense systems a year, which makes up just 2.5 of the roughly $200 billion spent on criminal justice by state and local governments each year.

So the money is tight to begin with and the majority of public defenders are grossly underpaid, but that doesn’t even begin to uncover the true crisis of counsel in this country.

The sheer number of cases being handled by each public defender is astronomical. In Kentucky, the average is 448 cases, which is 54 percent more than the recommended national standards. In Louisiana, one attorney alone had 194 felony cases at the same time. That attorney was not an outlier in the state either. Of public defenders in Louisiana at the same time, two dozen had even more clients.

The true scale of the problem is not even quantifiable, as information on each state is not widely released or even tracked. The last nationwide survey of public defenders offices is over a decade old, but it found that 73 percent of the county-funded public defender offices in 27 states were functioning above the recommended caseload level.

Without a doubt, some of our nation’s finest attorneys and legal minds are public defenders. But even the best and most brilliant attorneys could not provide their clients with a quality defense given these parameters.

Not only are these lawyers woefully underpaid and overworked, but they’re also battling the goliath of all opponents: government. Prosecutor offices, as a whole, are much better funded. They do not face the same staffing shortages, nor do they carry the same caseload. They also have built-in resources: law enforcement agencies to investigate, labs to produce, test, and report evidence, and often the media reporting at their behest. Given these factors, it’s a wonder anyone ever beats the system.

Considering the domino effect even the smallest of charges can have on a person’s life, the situation is dire. But given the fact that people’s lives are actually on the line in capital cases, it’s terrifying. This should be enough to make even the most stringent of death penalty supporters reconsider their stance.

While capital cases arguably get the most attention of all cases, with double the amount of attorneys and hours spent on them, the results are still horrific. On Texas’ death row, nearly one in four inmates had an attorney that was later disbarred or disciplined. In Washington, one fifth of those who faced execution had an attorney that was disbarred, suspended, or arrested. And in North Carolina, where 73 percent of the death row inmates were sentenced to die before the formation of an indigent defense fund, 16 (three of whom were already executed) were represented by an attorney who was disbarred or disciplined. Similar numbers can be found in other states.

If the right to an attorney is merely the right to have an educated body next to you as you stare down your government, then the U.S. has met the mark. But if the idea is to protect the individual against injustice, to ensure safeguards against the always overreaching and unfairly powerful government, and to fulfill the promises of the Constitution by truly guaranteeing every American representation, we are nowhere close.

Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. To read more of her reports — Click Here Now.

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While the death penalty is pretty randomly enforced (with the location of the crime being the largest determinate in sentencing), there is one thing most capital cases have in common — inadequate representation.
sixth amendment, counsel, crime, sentencing
Friday, 13 September 2019 12:58 PM
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