New York Times is inching its way to the correct conclusion. In an editorial yesterday, the paper praised efforts by the Justice Department to assure that indigent lawyers have adequate counsel when facing criminal charges. The paper also noted a less remarked upon problem: the extent to which indigent folks lack counsel in the civil justice system.
I am encouraged to see the Times take aim at the problem of access to the courts and to counsel. But I urge the Times to think more broadly. Certainly adequate funding of counsel for the indigent is a top priority, but just over the horizon is an issue as significant: the crushing burden of legal fees on the middle class. Few families can put together the funds necessary to finance a vigorous defense against serious charges.
There is no talk about the economy's recovery among lawyers serving the middle class and indigent. Our potential clients are scraping the bottom of barrels that used to be filled with rain. The real estate market has collapsed, taking with it the equity loan than many folks used to pay for counsel. There is no easy credit out there. Folks are tapped out and finding it impossible to pay legal fees.
What's needed is wholesale reform of the market in legal services. Every American should have the right to appointed counsel when accused of a crime. If that yields increased costs for the criminal justice system, so be it. Lawmakers might well then be forced to consider trimming waste at the margins. It's too easy to pass laws and criminalize conduct without counting the costs.
I reprint without permission the Times's editorial below.
Editorial
An Advocate for Equal Justice
Providing poor defendants effective appointed counsel is more than a constitutional obligation. It is a concrete measure of the nation’s commitment to equal justice under law. Yet indigent defense offices across the nation have been allowed to sink into crisis. They have fallen victim to insufficient financing, overwhelming caseloads and a slew of policies that hamper effective representation.
The civil legal aid system is no less challenged. Short on resources, local offices supported by the Legal Services Corporation, the federal agency that provides legal assistance for low-income Americans in civil cases, must turn away about half the eligible individuals who contact them for help with life-altering issues such as child custody or saving their homes from foreclosure.
One rare piece of good news is that Attorney General Eric Holder Jr. has made it his mission to try to narrow this gap in the administration of justice. To lead his campaign, he has hired Laurence Tribe, the prominent Harvard Law School professor and constitutional scholar.
The basic, sound idea is to look at ways indigent legal services can be improved, including by creating incentives for states to make better use of pro bono legal assistance, and help the growing number of people who represent themselves navigate the courts.
Realistically, Mr. Tribe cannot be expected to solve all the financial and other problems impeding the delivery of indigent legal services. But in applying his formidable teaching and advocacy skills, he can be a catalyst for bolstering stressed criminal and civil legal service providers and finding fresh strategies for serving more Americans with their urgent legal needs.
Wednesday, March 10, 2010
Sunday, March 7, 2010
A Unit Cost Theory Of Prosecution
Robert Wilson was charged with conspiring to commit mail fraud and aiding and abetting another to make false statements on a tax return. When he was arrested, he claimed he was broke. A public defender was appointed, and, after a six-week trial, Wilson was acquitted. Only it turns out that Wilson wasn't so broke after all. As a result, the trial court ordered that he repay the government some $52,000 for the cost of his defense.
The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.
In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.
Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.
I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.
The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.
At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?
Hat Tip: Crime and Federalism: http://www.ca6.uscourts.gov/opinions.pdf/10a0057p-06.pdf
The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.
In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.
Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.
I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.
The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.
At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?
Hat Tip: Crime and Federalism: http://www.ca6.uscourts.gov/opinions.pdf/10a0057p-06.pdf
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