Sunday, February 28, 2010

Justice? Take It Away From The DOJ!

I want to applaud the initiative undertaken by the Department of Justice, but I can't. The agency prosecutes people accused of crime. That's its role. There is no comparable agency devoted to the defense of those accused of a crime.

But now the department is about to launch a program to assist low-income people receive legal help. At some level, this smacks of paternalism: Does the department really care about justice, or does it just want to make sure that the convictions it obtains are bulletproof?

Laurence Tribe of Harvard will soon be hanging his hat at Justice. He'll head a new program called Access to Justice. In fact, he starts work on March 1.

Im not sure what Professor Tribe's brief will be. The New York Times reported as follows: "He will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer — a circumstance known in legal terms as indigent defense."

I think we need more than a high-octane cheerleader to make sure that all Americans have an adequate defense when accused of a crime. Professor Tribe can use all the moral suasion he possesses, but what's needed are dollars and a commitment of resources. The Government gets a Department of Justice, the Federal Bureaue of Investigation and the coordinate efforts of hundreds of local, state and federal law enforcement agencies. The defendant gets exhortation?

A real Department of Justice would be overseen by an administration given oversight of both prosecution and defense. At the head of the agency would be the executive director; below him would be a prosecution and defense division. The same agency that funds prosecution would be required to fund the defense, thus assuring the overcriminalization was checked by something like a unit cost of criminal prosecution. Each prosecution could be audited and a fiscal impact statement be done: Were the two sides provided equal resources? What did it cost to prosecute and defend the case? Lawmakers could review such data and decide whether the people are getting their money's worth in the criminal courts.

And every American would be guaranteed a right to a defense when the Government charges a crime. It simply makes no sense to impoverish the middle class when the Government charges a crime. The presumption of innocence is supposed to mean more than bankruptcy for those seeking the service of a lawyer, investigators, experts and more.

The Times reports that Tribe will be taking a look at the use of drug courts and mental health courts. He will also work on issues related to criminal, civil and family courts. These are welcome initiatives, but, again, why house these efforts in the agency that prosecutes?

Professor Tribe has a unique opportunity to transform the discussion equal justice for all. I hope he thinks outside the box. That means thinking in terms of what can be done to remove this project from the DOJ and to seek an institutional foundation at least equal to that provided to the prosecution.

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