Ake's Not About The Middle Class

While the United States Supreme Court has held that the indigent are entitled both to representation when charged with a crime and to the services of certain experts, those guarantees ring hollow to the middle and lower-middle classes.

Ake v. Oklahoma, 460 U.S. 68 (1985), held that when the sanity of a defendant is at issue, the state must provide an indigent defendant with the means to retain a psuchiatrist to evaluate him. The Supreme Court's language is moving: "This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."

Why limit the holding to the indigent? Few Americans have the means readily at their exposure to meet head on the calamity of a criminal prosecution.

In Connecticut, for example, the eligibility for the services of a public defender for a person with three dependents is $44,100 if the charge is a felony. (The state's per capita income is among the highest in the nation, at $56,248 for 2008. The national average was $39,751 that year. The figure is computed by the federal BEA by dividing a state's total personal income by the number of inhabitants.)

Suppose a married man with two kids is charged with a felony in Connecticut, but makes $45,000. He is above the eligibility threshold. Let's say the charge is manslaughter, and arises from a motor vehicle collision on the way home from a Super Bowl party. The state charges him with reckless manslaughter for driving while intoxicated.

What's the man's budget look like, assuming his spouse is not working. The gross monthly income is $3,750. If his mortgage is $1,200, phone and utility payments are another $200 per month the famiy's groceries are $150 per week or $645 per month, and his car payments and insurance are $400 per month, he is left with about $1,300 to pay state and local taxes. What's left after taxes goes to clothing and the other incidentals necessary to living. Let's say he manages to save $200 per month.

My sense of the market in Connecticut is that lawyers called to defend this case will quote a fee for legal services of somewhere between $5,000 to $25,000 for pre-trial work, with a separate fee of $10,000 to $50,000 for a trial. (My source for this information is largely anecdotal and comes from speaking to folks on the phone day in and day out.) Where does this client come up with the legal fees? And where does the client come up with money for a toxicologist to review the state's work? Or for an accident reconstruction expert to review the police reports? These fees will cripple a middle class family if the family is lucky enough to be able to raise them.

Ake's guarantee that a person can seek state funding for an expert once they become indigent is cold comfort for the family forced to their knees by a criminal prosecution. And while Ake speaks of the need for expert testimony to defend a claim that the defendant lacks the intent necessary to commit a crime -- the grand daddy of all defenses -- it is a holding rarely applied in the state courts for such things as handwriting experts, toxicologists and forensic interviewers. Ake is, in my view, mere window dressing.

Requiring the state to pay the full cost of defense for all those accused of a crime would avoid impoverishment of middle class families trying to vindicate the presumption of innocence. It may well be that such funding would have to come from a separate state agency, perhaps one that budgeted resources for both the defense and the prosecution so as to assure some rough parity of resources. Focusing the attention of lawmakers on the total costs of prosecution each offense might force lawmakers to make tough cost-benefit decisions about whether some offenses are worth the expense.