Innocent Until Proven Indigent

A coterie of some of the nation’s top experts spanning fields of criminal justice, law, and policy gathered on Capitol Hill last Tuesday for the Constitutional Right to Counsel Summit. Chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, Representative Bobby Scott (D-Va.), assembled a dynamite panel to address the colossal disadvantages facing indigent defenders within the criminal justice system.  It seemed the panel would require nothing short of superpowers to overcome the crisis.

Panelists included: Laurence Tribe, a former Harvard Law professor and leading American constitutional scholar recruited for the nation’s Access to Justice Initiative; Alan Crotzer, a community intervention officer whose false conviction for rape and kidnapping cost him almost 25 years in prison; Carlos Martinez, a public defender in Miami; John Chisholm, the District Attorney of Milwaukee County , Wisconsin, and beacon for criminal justice reform in his state; Hon. Carolyn Temin, a Philadelphia Judge; Hon. Michael Wolff, Missouri Supreme Court Judge and former Chief Justice of the court; George Kendall, Counsel at Squire Sanders Dempsey and Director of the firm’s Public Service Initiative; Adele Bernhard, associate professor at Pace Law School and Director of the Post-Conviction Project; and Nancy Diehl, former Chief of the Felony Trial Division in Wayne County, Michigan.

Without superpowers, a secret identity, or even a bathroom break, the panelists challenged current policy and practices surrounding the often ignored problem of underfunded and overburdened American public defenders. For over three hours, the audience listened to a slew of statistics and research with a mix of heroic admiration for the panelists and disgust over the status quo.

The numbers are staggering:  90 percent of all criminal defendants fall below the poverty line; incarceration rates have increased 800 percent in the last 30 years; and the statistics continue to pile up as the disparity between resources for public defense and prosecution widen. The ability for indigent defenders to find a state-provided defense, with the time and money to offer a thorough representation, has become increasingly rare.

For example: Miami has exactly 200 public defenders working 850,000 cases a year, constituting a case-to-attorney ratio of 4,250:1. The problem of inadequate public defense only amplifies as the annual budget for public defenders levels off at $150,000, while the prosecution receives $4.3 million. In light of these findings, it is no wonder why the poor stand a dismal chance for putting up even the most basic defense.

A plethora of malfeasances plague the criminal defense system for the most destitute, including plea blitzes, in which the defense and prosecution generate dozens of garish sentences to reduce the docket in a single afternoon and defender-client counsel lasting less than an hour before arraignment. From all ends of the summit, from the representatives to the panelists, there was a collective call to end the new class ceiling created from substandard criminal defense.

Fortunately, the summit was not merely a depressing examination of the status quo. The panelists were convened to discuss solutions as much as the problems involved in the current system. Defenders, prosecutors, judges, and policymakers alike agreed that to overcome this justice-sucking monster, no power less than the federal government would avail. Federal laws allocating more money to public defenders, increased time with counsel for uneducated defenders, and a mandatory convening period for the prosecution and defense to negotiate sentences were all suggestions. Lawrence Tribe spoke briefly of new federal programs and mandates formulating within the Access to Justice Initiative. Although vague in specifics, his underlying message was clear: the antidote to this epidemic resided in innovative federal leadership and action.

Although the audience of public defenders, pro bono and public interest lawyers, lobbyists, and concerned citizens unsuccessfully pressed the panelists and representatives for detailed plans, a promise of reform is on its way. Hopefully with more funding, new approaches, and a galvanized focus on convicting only those found guilty after a proper defense, can the standard again be set to "innocent until proven guilty." Until then, not by intention, the current system will continue to propagate "innocent until proven indigent."

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