Sunday, April 4, 2010

The Right to Counsel

New York State’s dysfunctional, underfinanced public defender program is a problem of constitutional dimensions. It is the subject of a class-action lawsuit, which argues credibly that indigent criminal defendants are regularly deprived of their right to effective counsel. The suit, filed by the New York Civil Liberties Union, focuses on five counties, but the problem is far broader. A commission appointed by Judith Kaye, then the chief judge, concluded in 2006 that the state’s defender system failed to provide effective representation to “a large portion of those entitled to it,” citing bloated caseloads and inadequate training and supervision.


The Sixth Amendment to the U.S. Constitution  guarantees the right to the assistance of counsel. Aided and abetted by the U.S. Supreme Court, the states have fought hard to water down this important constitutional safeguard.

We only have to  read the Court's opinion in Powell v. Alabama to understand why competent legal counsel should be widely available to everyone charged with a crime:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.

New York's indigent defense system is being sued by the ACLU. Idaho's system can't be far behind. A recent report highlighted many of the problems facing the patchwork system employed in Idaho. The State can't throw up its hands and avoid responsibility by simply declaring that it does not have the funds unless it is also willing to reduce the number of poor people it charges with a crime.

The take away from cases like Powell, Gideon, and others is that it should NOT be easy for the State to deprive someone of their life or their liberty. In fact, doing so should be the most difficult task undertaken by the State. The financial situation has revealed the deliberate underfunding of indigent defense systems in order to produce unequal justice.  

But the sorry state of indigent defense in New York, Georgia, Idaho, and elsewhere makes a mockery of the ideals established in Powell. One more piece of evidence that the criminal justice system is broken, and perhaps irreparable.

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