I want to be a bit less formal today. Some of my past writing has, by way of necessity, been quasi-legal in nature; not this time. No new cases or issues are going to be introduced. Instead, I want to explain what I meant in my last post when I said that it’s a bad idea to make private attorneys take pro-bono work.
Let me begin with a very (perhaps frustratingly so) broad question: what is the point of our legal system? No doubt, it has a wide range of purposes yet at its core is an ability to reduce uncertainty. Humans hate uncertainty; we deplore it. It’s why we seek answers. It’s why we ponder whether or not there is a God, and it’s why we have government. Without government we have anarchy (in the pure sense of the word). Applying a set of authorities and laws to people provides predictability if nothing else.
For example, we don’t have to wonder about what will happen if someone tries to take over our town and establish themselves as the town’s new leaders; we know what will happen. We know that anyone who tries such a thing will be subject to a standardized procedure: they’ll be confronted by law enforcement, then charged with varying crimes, then processed through the court system, and finally a judgment as to their guilt or innocence will be made. It’s the same in every state and territory.
Indeed, we don’t even have to wonder about who will have authority to create such a structured system for dealing with crime (or any other aspect of life, for that matter). We know that there will be elected representatives who we, as a people, vote for and send to a legislature to make laws. Do we know who will be elected or what precise laws will be proposed and passed? Of course not. What we have is an instrument that reduces uncertainty and allows us to know the mechanisms that will apply to us in varying situations.
What is my point? It is that the goal of our justice system does not start with being fair or just. Those are, doubtless, goals of it yet they are not the fundamental aim of it. If what we want is predictability in the criminal law system then we certainly have it. We know about 80-90% of people charged with crimes will be poor and that most of those people will be minorities. We also know most of those defendants plead out. I’m writing this not to say that we need to fix the system but rather improve it.
II. IMPROVING THE SYSTEM
So, how can we do that?
Well, there are a lot of ways. Some of them are more tenable than others. At a base level we could do away with an adversarial system for criminal matters and assume an inquisitorial one. An adversary system is pretty much what it sounds like: two sides go head to head and one wins. The idea is that opposing biases will cancel out in favor of the truth but it seems like, at the very best, a clumsy way to arrive at the truth. At its worst, it creates incentives for two sides to do whatever they can to win thus throwing common sense and ethics out the window.
I have personally seen this happen both with prosecutors and defense attorneys. Take the Connick v. Thompson case that is being considered by the US Supreme Court. There, the DA of New Orleans (Harry Connick Sr., father of the famous singer) created a system of “closed” discovery because he didn’t want defense attorneys having anything other than what was absolutely required. That zealous pursuit of winning cases was at the expense of justice and nearly cost an innocent man his life. Prosecutorial misconduct is nothing new but what drives it? A desire to win, to look tough on crime, so forth and so on. A natural consequence of the adversarial system.
The trend occurs with defense attorneys as well. I’ve worked in a couple public defense firms with a dedicated “conflict” division. You know why it exists? Because when two defendants are arrested together, the best strategy usually involves blaming the other guy, regardless of what actually happened. A more appalling strategy is seen in a rape case, where the defense might well use the “she was asking for it” argument. These are once again products of an adversarial system. Both sides have an obligation to put on the best possible case for their clients…and that doesn’t always lead to making a case that exposes the truth.
An inquisitorial system would help reduce or perhaps eliminate this obfuscation of the truth in search for a win. In such systems, a (hopefully impartial) judge takes an active roll in fact finding as well as resolving matters of the law. Lawyers are still present here, but take a back-seat role. We are close to such a system in areas like family law where a judge may have substantial involvement in dealing with divorce issues, custody arrangements, etc… and it works very well. However, the adversary system is heavily ingrained in American criminal law and such a wide overhaul is unlikely to occur any time soon, if ever. [Update as of 4/14/2011: see this extensive law review article for a much deeper analysis of the above discussion.
Therefore, we are constrained to improve aspects of the pre-existing system. Can it be done? You bet. A big improvement would be in making changes to how indigent representation occurs.
In large American cities, there is almost always a dedicated public defenders office, which deals exclusively in defending people accused of crimes who cannot afford attorneys. In most suburban and rural environments, a different approach is employed. There, private attorneys may be appointed to represent indigent defendants. This method may be employed for varying reasons: not enough defendants come through the system to warrant funding a dedicated office, not enough crime occurs in general to warrant a dedicated office, etc… Some places, such as Washington D.C., utilize a sort of hybrid: a dedicated firm deals with serious charges and minor charges are dealt wit by private attorneys.
There is a problem with “privatizing” or “subcontracting” legal counsel for indigents. The biggest problem is that many places do not limit this “outsourcing” to criminal defense attorneys. I have heard of situations where a tax lawyer was assigned a criminal defendant who was poor. While I have nothing against tax lawyers, they are not usually equipped adequately to mount a vigorous defense in a criminal trial. Trying a criminal case is an art form that requires skill and practice…and a tax lawyer who usually doesn’t even see the inside of a court room has neither the skill nor the practice to put on the show a jury has to see in order to exonerate a client.
Another huge concern is the conflict between paid and unpaid work. Some jurisdictions provide compensation to attorneys for performing this indigent defense obligation … but many do not. Faced with the issue of determining where you should focus your time and efforts, it’s impossible not to remember which cases are paying the bills and which ones are not. This means that, from the start, the indigent client never receives the same quality of defense that a person with a bigger pocket book gets.
Aside from those matters, there is a reality that most private firms do not have access to the necessary resources. A well-made criminal defense requires investigators (private or in-house), it requires access to search people-search databases that are extremely expensive (and require a background check before being granted access). All of these things and more are crucial for properly defending a client … and they are not cheap. Most private firms do not have or are not willing to allocate the necessary funds to ensure such tools are in place for instances when pro bono work may come their way.
For all of these reasons, creating a dedicated public defender office is a crucial element to approaching fairness and justice in the legal system. A public defender system is dedicated to handling criminal defense of poor persons and thus dedicates its resources to the tools and staff it needs in order to provide zealous defense. Are public defenders typically overworked? Yes. Is there still a quality gap between private and public criminal defense? In too many places, yes. But it is still better than asking private attorneys to do the job. First you crawl, then you walk, then you run. Before we focus on reducing the workload on public defenders (which unavoidably brings prosecution levels into the equation), we need to increase the number of places that rely upon a dedicated office instead of outsourcing.
It’s far easier said than done because, after all, this is a funding issue at heart. If all governments could afford well-staffed public defense organizations, they wouldn’t be outsourcing in the first place. The process of putting indigent defense in private attorneys’ hands is a method of cost defrayment (it costs very little if anything to do). And doubtless, the funding issue cuts yet another way: determining who gets how much. By that, I mean how much of available funds go to a prosecutor’s officer and how much to a public defense office? I know from personal experience that in New Orleans, the prosecutor’s office usually received 2 to3 times the amount of money as the Orleans Public Defenders.
Now, a hasty person may suggest that clearly the fairest thing to do is to give them both half. That’s not necessarily true because the prosecutors will go after defendants who are not poor which implies that OPD does not have the exact same workload burden as the prosecutors. But it definitely seems fair to suggest that a budget should be proportional to what is necessary for properly processing cases. What those numbers are is no doubt a more complicated formula than I want to deal with right now, but I’m willing to bet the margin is more narrow than 3 to 1.
III. CONCLUDING REMARKS
The truth is, there are continual challenges to how we can make a legal system fair and those challenges are magnified under an adversarial approach. The theoretical “canceling out” of bias can only occur if both adversaries have equal capabilities; we know for a fact that this is most often not the case. Still, that doesn’t mean we can’t or shouldn’t work to reduce the disparities that exist. On the contrary, it’s more than doable and certainly worthwhile. What it requires is a balancing act of funding; of providing cities, towns and villages with money for a dedicated public defense firm and determining how to divvy up money between prosecutor and public defender. Now, I’m no public policy expert nor economist so I don’t know exactly what the best methods of acquiring and distributing funding might be. All I can say is that it’s time we stopped outsourcing criminal defense. Some cities have done this; too many haven’t. If this subcontracting could get the job done at the desired level of quality, I’d have no issue with it. Unfortunately, this approach just doesn’t work. It produces subpar results and I’m not comfortable with subpar results when they affect a person’s physical liberty. The beauty is that there is hope. The system is not broken it just needs some improvement. And that, I think, is more than achievable if we just make it a priority.