Make Lawmakers Count Cost of Overcriminalization

Are we prepared, as a society, to pay more than lip service to the presumption of innocence? If we are, then it's time to we offered to pay for the legal defense of anyone accused of a crime. Anything less amounts to the most regressive tax of all, a tax which devastates the middle class while encouraging the growth of a government detached from the consequences of its actions.

Let's begin with fundamentals: The United States incarcerates more persons per capita than any other industrial nation on Earth. What's more, the sentences we impose are disproportionately longer than those imposed in other countries. In sum, the land of the free is in the grip of overcriminalization.

Expecting lawmakers to do much about it is like expecting a madam to impose vows of chastity on the working girls. Stirring the passions of voters about crime is just too lucrative a pastime for lawmakers. So legislators pass one law after another, imposing mandatory minimum sentences, enacting new crimes, and supervising the expansion of the penal code.

Until lawmakers are made to understand the cost of their punitive polices, they will continue to prefer severe criminal policies. We permit lawmakers to play with fantasy dollars when it comes to crime. We don't make them count fully the cost of what they are doing. I say change that by requiring the full costs of the criminal justice system to be borne by the public fisc. We can do this by requiring a universal public defender system, and guaranteeing to all citizens the right to a defense paid for by the state.

Indigents are already guaranteed a right to counsel. Ake v. Oklahoma holds 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." Why are we so sparing in our regard to fundamental fairness? Is the middle class any better equipped to face the state when charged with a crime?

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. 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.

My anecdotal 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. 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.

A better criminal justice system would require the state to pay for both the cost of prosecution and defense. A defendant found guilty could be assessed a fine to cover the costs of his defense.

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. It would also inspire meaningful overview of prosecutorial discretion.

Reprinted courtesy of the Connecticut Law Tribune.