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We Accept Assembly-Line Justice for the Poor. But We Shouldn’t.

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Automobile Assembly LIne
Donna Lieberman,
New York Civil Liberties Union
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January 25, 2016

This piece originally appeared at The Washington Post’s “In Theory.”

In “Making a Murderer,” Steven Avery says, “Poor people lose all the time.” Compared with many poor people in New York state’s criminal justice system, Avery had it easy.

The money that he received from a previous settlement allowed him to hire top-flight attorneys to pursue his quest for freedom. However, most poor people must rely on the government to provide a public defender — and if their state fails to provide competent lawyers, they don’t stand a chance in court, innocent or not.

The majority of people locked up in local city and county jails are presumed innocent but nonetheless punished with months and even years of incarceration while awaiting trial.

The U.S. Supreme Court acknowledged 50 years ago in the landmark Gideon v. Wainwright decision what it called an “obvious truth” — that most people don’t know enough about the law to adequately defend themselves. A lawyer is a necessity in criminal court. And for those without the means to hire one, defense services must be provided by the state.

In New York state, where I have worked to advocate for constitutional rights, a poor person is often just another one of hundreds of cases on the docket of an overworked and underpaid public defense attorney.

Donald Telfair, one of our clients, didn’t even meet his public defense attorney until he was standing in front of the prosecutor and judge in a Suffolk County courtroom. He had been violently attacked by a group of men, but instead of taking his report, the police charged him with robbery. His attorney didn’t have time to learn his side of the story and why he wasn’t a flight risk prior to court. Still in his hospital gown, with one eye swollen and his jaw wired shut, Donald’s bail hearing was a one-sided affair. Bail was set beyond his means, and he was kept in jail until his case was resolved.

The majority of people locked up in local city and county jails are like Telfair: presumed innocent but nonetheless punished with months and even years of incarceration while awaiting trial. Unable to work or pay rent, they lose their jobs, homes, and families. For Telfair, after spending months in jail, a plea bargain for one and a half to three years in prison seemed like the only way to get his life back.

But sometimes the accused lose their lives. In 2010, Kalief Browder maintained that he was innocent of stealing a backpack when, at the age of 16, he was sent to New York’s notorious Rikers Island to await trial. His mother could not afford the $3,000 bail, and his case was delayed over and over. By the time the district attorney admitted that the government had no case, Browder had been locked up for 1,000 days, nearly 800 in solitary confinement. Scarred and traumatized, he hanged himself last summer after his release.

As many as 450,000 people locked up in the United States have not been convicted of anything. They are incarcerated because they are awaiting trial and are not eligible for or cannot afford bail.

How’s that for presumption of innocence?

For a good defense attorney, setting a reasonable bail is just one step of the process. In an era when criminal cases rely on complex DNA and other forensic evidence, an adequate defense may require the use of investigators and experts. Without these resources, which were critical in building his defense against the murder charge, Avery might never have been exonerated the first time he was sent to prison.

In our 2014 report examining the state of criminal justice in five New York counties, we found that in one county, public defense attorneys consulted expert witnesses in only 22 of 14,000 cases and used investigators in only 50 cases. To make matters worse, that same county spent 35 times as much money on investigators for the district attorney than it did on investigators for public defense.

But there doesn’t have to be a two-tiered system. We don’t have to accept as normal assembly-line justice for the poor. In 2014, the New York Civil Liberties Union settled Hurrell-Harring v. New York, our class-action legal challenge to New York’s woefully inadequate — and unconstitutional — public defense system. We won state funding and oversight for the five counties named in the lawsuit. Now, a bipartisan bill is up before the state legislature to extend public defense reform to the whole state. The bill would guarantee a lawyer for every defendant at his or her first court appearance, where bail is set and pleas are often taken. It would limit caseloads so lawyers have time to do their jobs and provide professional standards and oversight.

America’s fascination with “Making a Murderer” shows how much we care about justice. It’s also a reminder that when a person stands accused of a crime without a competent lawyer, there can be no justice.

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