The Sunday Dog: A 1% Chance

Ninety-nine percent of Americans have a one-percent chance at justice. In a recent tirade against the nation’s courts, Donald Trump tweeted that the justice system is broken. He was right…just not in the way he meant.

11052017 Gavel
Justice in America comes with a price tag that most cannot afford.

Last week, the ACLU filed a lawsuit against the state of Nevada for violations of the United States Constitution Sixth Amendment. The suit alleges that the state’s overworked rural public defender system denies the guaranteed right to effective assistance of counsel in criminal proceedings. Nevada is not the only state where the problem exists.

Contrary to popular and misleading television programs like “Law & Order,” most of America’s accused are not able to afford or receive any constitutionally guaranteed assistance of counsel. From the nation’s largest cities to the smallest towns, the attorneys tasked with representing indigent men, women, and children are overworked and underfunded. The combination of government mismanagement and lack of consideration for important constitutional mandates leads to a tragic imbalance in the courts.

New York State has been facing a situation similar to the legal crisis in Nevada for over a decade. In 2014, public defenders across the Empire State handled an average caseload of 600 criminal defendants. For a defense attorney, that means closing three cases every two days — weekends and holidays included. The only way to close cases at that rate is to recommend plea bargains to clients who may not be guilty of the crimes with which they are charged.

In places like Kentucky, Minnesota, and Louisiana, the problem is even more disturbing. Nearly all of Kentucky’s public defenders exceeded the American Bar Association’s recommendations for caseloads in 2015. Across Minnesota, public defenders spent an average of twelve minutes outside the courtroom on a case — about the time of their first meeting with a client through jail bars in the local holding cell. Louisiana defendants likely suffer the most of any state’s accused. There, over 80% of defendants charged with a crime cannot afford an attorney. The demand for public defenders has brought the system close to collapse.

People line up to visit U.S. Supreme Court after split 4-4 decision in first major case after Scalia death in Washington
The Supreme Court has recognized the problem plaguing public defender systems, and has yet to fix it so Americans will not continue to suffer. Photo: Gary Cameron/Reuters

Beginning in the 1920s, the Supreme Court of the United States began issuing a string of opinions addressing the Sixth Amendment right to counsel. The Court’s earlier analyses of the right to counsel dealt with criminal proceedings in federal courts and progressed through the questions of right to counsel, effectiveness of counsel, and whether the Sixth Amendment applied to proceedings in state courts. In 1963, the Court affirmed in Gideon v. Wainwright that all criminal defendants were entitled to assistance of counsel.

Since then, Sixth Amendment issues facing the nation’s highest Court have focused on what constitutes the “effective assistance” of counsel mandated by the U.S. Constitution. Always an intensely contested topic before any appellate court, the effectiveness of public defender representation has been frequently challenged. In 2016, the Supreme Court came close to making a declarative ruling on the broken system.

And then Donald Trump happened. The appointment of Neil Gorsuch makes it unlikely that the Court may finally issue a decisive opinion on the plague facing the American criminal justice system.

In determining a question of forfeiture in Luis v. United States, the Court’s commentary in 2016 included a divergence from the central opinion by Justice Breyer. Breyer came close to addressing the seriousness of the crisis facing the public defender system. Writing for the plurality, he acknowledged, “As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recognized recommended caseload standards.”

Breyer continued late in his opinion to suggest that adding more clients to the already burgeoning public defender system would “render less effective the basic right the Sixth Amendment seeks to protect.” He did not say adding clients would tip the scales of effectiveness, he said it would make the system less effective. The implication is that the system is already failing. That may be as far as the Court goes on the issue for another 50 years.

The cost of a defense attorney is out of reach for most Americans. Even the least of felonies demands a retainer more than many families can afford. Trumped up serious charges designed to leverage plea bargains make most lawyers salivate and retainers range from a mere $10,000 to six digits. America simply cannot afford the price tag that comes with the Sixth Amendment right to effective assistance of counsel.

As Donald Trump continues his destructive march across America, his footprints are eroding the very ideals that our founders struggled to initiate. As a nation, we are approaching a critical juncture when justice will be out of reach for all but the One Percent. There is a certain irony in the rich and privileged being the only people who can afford the effective assistance of counsel in a criminal defense, since the One Percent are the ones the framers of our constitution sought to protect us against.

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