The poor no longer have a meaningful right to a lawyer

[Loren Pechtel]

https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html

Once again, the failure of a system where the one spending the money defines whether proper service has been provided.

 

[Derec]

https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html

Once again, the failure of a system where the one spending the money defines whether proper service has been provided.

I agree that the public defenders tend to be horribly overworked, and therefore unable to give their clients proper defense.
What is the solution?
For one, many things that are currently criminal should be either legal (weed, sex work) or sub-criminal infractions (most traffic violations for example, but maybe also "trivial theft", say under $10 or $20). That would reduce the loads courts currently have.
That will not fix the problem altogether (most defendants that one lawyer in the article had were accused of real crimes, often felonies), but it would be a start.
Maybe a system of "public defense duty" for lawyers similar to "jury duty" for citizens can be implemented. Any lawyer in good standing can be called to serve in a case randomly.

 

[untermensche]

Yeah.

It's not realistic to think you could actually raise the standard of living so people could afford a lawyer.

That can't be done in modern capitalist states

The standard of living has worsened for most in the last few decades. The cost of living has continually increased and wages have been stagnant.

 

[Elixir]

Maybe a system of "public defense duty" for lawyers similar to "jury duty" for citizens can be implemented. Any lawyer in good standing can be called to serve in a case randomly.

I agree (much as I hate it when that happens ). There are definitely some lawyers whose general outlook might be improved by such a tour of duty, not to mention the benefits to they PD system.

 

[ronburgundy]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

But the other part of that solution requires judges that actually care about human rights rather than throwing as many poor people and minorities in jail as possible. IOW, as with solutions to nearly every political problem, especially injustice in law enforcement, part of the solution is ensuring that Republicans hold as few public offices as possible, which also means as few conservative judges appointed by Republicans as possible. In fact, the Constitution technically only states that "advice from council", so conservatives are likely to try and claim that doesn't mean minimally competent council, only any non-zero amount of council from any person who has passed the Bar exam.

 

[Loren Pechtel]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

But the other part of that solution requires judges that actually care about human rights rather than throwing as many poor people and minorities in jail as possible. IOW, as with solutions to nearly every political problem, especially injustice in law enforcement, part of the solution is ensuring that Republicans hold as few public offices as possible, which also means as few conservative judges appointed by Republicans as possible. In fact, the Constitution technically only states that "advice from council", so conservatives are likely to try and claim that doesn't mean minimally competent council, only any non-zero amount of council from any person who has passed the Bar exam.

Exactly. We need accountability, something seriously in short supply these days.

 

[Elixir]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

But the other part of that solution requires judges that actually care about human rights rather than throwing as many poor people and minorities in jail as possible. IOW, as with solutions to nearly every political problem, especially injustice in law enforcement, part of the solution is ensuring that Republicans hold as few public offices as possible, which also means as few conservative judges appointed by Republicans as possible. In fact, the Constitution technically only states that "advice from council", so conservatives are likely to try and claim that doesn't mean minimally competent council, only any non-zero amount of council from any person who has passed the Bar exam.

Exactly. We need accountability, something seriously in short supply these days.

My lingering doubt is whether, should Dems seize every branch of government in 2020, they'll create new legal structures of required accountability, or just go hog wild implementing whatever policies they want to, taking advantage of their new environment of no accountability. I think the party lacks the unity that the Republican party enjoys, which would limit the extent of the damage they might do. But I don't know if, at the end of the day, they will have the collective guts to mandate regulatory changes that would effect them as well as Republicans.

 

[Loren Pechtel]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

But the other part of that solution requires judges that actually care about human rights rather than throwing as many poor people and minorities in jail as possible. IOW, as with solutions to nearly every political problem, especially injustice in law enforcement, part of the solution is ensuring that Republicans hold as few public offices as possible, which also means as few conservative judges appointed by Republicans as possible. In fact, the Constitution technically only states that "advice from council", so conservatives are likely to try and claim that doesn't mean minimally competent council, only any non-zero amount of council from any person who has passed the Bar exam.

Exactly. We need accountability, something seriously in short supply these days.

My lingering doubt is whether, should Dems seize every branch of government in 2020, they'll create new legal structures of required accountability, or just go hog wild implementing whatever policies they want to, taking advantage of their new environment of no accountability. I think the party lacks the unity that the Republican party enjoys, which would limit the extent of the damage they might do. But I don't know if, at the end of the day, they will have the collective guts to mandate regulatory changes that would effect them as well as Republicans.

Unfortunately, you're probably right. Neither side is interested in spending money on this.

However, D-appointed judges might be more willing to put their foot down and vacate convictions based on inadequate representation.

 

[Bomb#20]

Maybe a system of "public defense duty" for lawyers similar to "jury duty" for citizens can be implemented. Any lawyer in good standing can be called to serve in a case randomly.

I agree (much as I hate it when that happens ). There are definitely some lawyers whose general outlook might be improved by such a tour of duty, not to mention the benefits to they PD system.

That system is already in place -- for centuries it's been standard practice for courts to draft lawyers to represent indigent defendants. Sometimes the lawyers are paid by the state; sometimes they're required to work pro bono. The system has fallen into disuse in many jurisdictions that hired public defenders (public defenders are a relatively new legal concept), but it's still on the books as a backup and it gets used from time to time when some judge gets too exasperated with the local public defender's caseload.

The trouble is, even badly overworked public defenders on average do a better job than drafted private lawyers (there've been studies on this.) So a better solution would be to adequately fund public defender offices.

 

[James Madison]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

Not a sensible approach. A “could not have plausibly” generality applied to all cases where the work should be “4 times” more runs the risk of vacating convictions where, despite the shorter amount of time devoted to the case, a “competent defense” was presented at trial.

It doesn’t make sense to presume or conclude something less than a competent defense was given on the basis the generally presumed required number of hours to devote to the case isn’t met.

Perhaps more money for public defenders is required.


Sent from my iPhone using Tapatalk

 

[Jason Harvestdancer]

Personally I think one solution is to have the Public Defenders office receive equal staffing and money as the DA office, and any case that gets a DA gets a PD. Even if the accused can afford a lawyer.

 

[ronburgundy]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

Not a sensible approach. A “could not have plausibly” generality applied to all cases where the work should be “4 times” more runs the risk of vacating convictions where, despite the shorter amount of time devoted to the case, a “competent defense” was presented at trial.

It doesn’t make sense to presume or conclude something less than a competent defense was given on the basis the generally presumed required number of hours to devote to the case isn’t met.

Perhaps more money for public defenders is required.

It does make sense to conclude that the vast majority of cases are not being given a competent defense if the average time spent is 4 times less than it would be if all cases got a competent defense. That sets the a priori probability as being very high that any particular case was given a less-than-competent defense, unless there is evidence showing the defense was competent.
Thus, such evidence of general lack of competence should lead a reasonable judge to shift the burden upon the public defender to show evidence of competence, lowering the bar for what the defendant must show to have the conviction thrown out.

Of course, by itself this is not a long term solution because it would just shift the errors in the system from too many false convictions to too many failures to convict objectively guilty suspects. But what it would do is put pressure on the government and the public to properly fund the PD offices, if they want the courts to be able to enforce and uphold the laws.

Personally I think one solution is to have the Public Defenders office receive equal staffing and money as the DA office, and any case that gets a DA gets a PD. Even if the accused can afford a lawyer.

Given that it is mostly poor people and minorities currently getting screwed by an underfunded PD, the majority of voters and office holders have no motive (other than human decency which is lacking) to support more funds for the PD. Thus, we need to give them motive by making it very hard to convict people and throwing out convictions, unless the PD gets adequate funding.

And actually, the PD should probably get much more funding than the DA. The DA has the police force working on their side, collecting evidence against suspects. Yes, the cops should just collect all relevant evidence, not just what builds a case against a lead suspect but they do not and will not ever do that. While there is some desire for them to get the right person, there are also desires to get anyone, and to spend as little resources on a case as possible, which inherently lead to selective searches for and recognition of evidence biased against a particular lead suspect.

 

[Trausti]

Maybe a system of "public defense duty" for lawyers similar to "jury duty" for citizens can be implemented. Any lawyer in good standing can be called to serve in a case randomly.

I agree (much as I hate it when that happens ). There are definitely some lawyers whose general outlook might be improved by such a tour of duty, not to mention the benefits to they PD system.

That system is already in place -- for centuries it's been standard practice for courts to draft lawyers to represent indigent defendants. Sometimes the lawyers are paid by the state; sometimes they're required to work pro bono. The system has fallen into disuse in many jurisdictions that hired public defenders (public defenders are a relatively new legal concept), but it's still on the books as a backup and it gets used from time to time when some judge gets too exasperated with the local public defender's caseload.

The trouble is, even badly overworked public defenders on average do a better job than drafted private lawyers (there've been studies on this.) So a better solution would be to adequately fund public defender offices.

Well, yeah. Criminal law is a different beast from civil law. Conscripting a civil lawyer to handle a criminal case invites malpractice.

 

[laughing dog]

Of course, by itself this is not a long term solution because it would just shift the errors in the system from too many false convictions to too many failures to convict objectively guilty suspects.

True, but we are constantly reminded that it is better to let 1,000 guilty people go than to wrongly convict one innocent person.

 

[ronburgundy]

Of course, by itself this is not a long term solution because it would just shift the errors in the system from too many false convictions to too many failures to convict objectively guilty suspects.

True, but we are constantly reminded that it is better to let 1,000 guilty people go than to wrongly convict one innocent person.

But that is a platitude with some highly subjective and arbitrary math, and we don't want the rationale for policy to based on something like that which there is large room for disagreement and a lack of clear ethical principles to support it.
After all, if 1000 criminals set free each rape and kill a 100 women, is the raping and killing of a 100,000 women worth a single innocent person not getting punished? Granted, we want to set a high bar for the government to be able to take a person's liberty away in order to avoid the threat of fascism with a low bar. But other citizens can cause as much harm to citizens as the government. So, the balance point is subjective. What all reasonable people do agree upon is that we should reduce both types of errors as much as possible, because both types of errors are ultimately harmful to good law abiding citizens. But people of means think they can avoid the error of wrongful conviction by hiring their own lawyer.
That is what makes my next sentence after the one you quoted so important, that raising the bar for the quality of PD council in order to get a conviction will incentive those who don't expect to ever rely upon a PD to still ensure they are funded well enough to avoid their convictions being thrown out.

Heck, to gain support for more $ to PDs, we could even appeal to the greed of conservatives who don't care about imprisoning the poor. We could point out that every wrongful conviction not only costs the taxpayers lots $, but also removes a person from the workforce which harms the bargaining power of employers to pay people less. So, funding the PD is a good idea, whether one has basic human decency or not.

 

[laughing dog]

Of course, by itself this is not a long term solution because it would just shift the errors in the system from too many false convictions to too many failures to convict objectively guilty suspects.

True, but we are constantly reminded that it is better to let 1,000 guilty people go than to wrongly convict one innocent person.

But that is a platitude with some highly subjective and arbitrary math, and we don't want the rationale for policy to based on something like that which there is large room for disagreement and a lack of clear ethical principles to support it.

I agree 100%.

After all, if 1000 criminals set free each rape and kill a 100 women, is the raping and killing of a 100,000 women worth a single innocent person not getting punished?

According to some posters to this forum, yes.

Granted, we want to set a high bar for the government to be able to take a person's liberty away in order to avoid the threat of fascism with a low bar. But other citizens can cause as much harm to citizens as the government. So, the balance point is subjective. What all reasonable people do agree upon is that we should reduce both types of errors as much as possible, because both types of errors are ultimately harmful to good law abiding citizens. But people of means think they can avoid the error of wrongful conviction by hiring their own lawyer.
That is what makes my next sentence after the one you quoted so important, that raising the bar for the quality of PD council in order to get a conviction will incentive those who don't expect to ever rely upon a PD to still ensure they are funded well enough to avoid their convictions being thrown out.

Getting funding for PD is difficult. The police and the DAs in most states can play on fear with anecdotes about horrible crimes.

Heck, to gain support for more $ to PDs, we could even appeal to the greed of conservatives who don't care about imprisoning the poor. We could point out that every wrongful conviction not only costs the taxpayers lots $, but also removes a person from the workforce which harms the bargaining power of employers to pay people less. So, funding the PD is a good idea, whether one has basic human decency or not.

100% agree.

 

[ronburgundy]

Getting funding for PD is difficult. The police and the DAs in most states can play on fear with anecdotes about horrible crimes.

That's the point. The PD workload itself is clear evidence that most suspects represented by PDs cannot possibly be getting minimally competent council. If this fact can be used shift the burden of evidence and require DAs to prove that a given conviction was a rare instance of a suspect getting competent council, then many guilty defendants will go free, which is frightening to the public. It uses the same fear of the guilty going free that is currently used to fund the cops and DA to also fund the PDs to ensure that convictions of the guilty hold up. For those of us liberals who care about innocent poor people going to jail, this same extra funding will have the incidental byproduct of reducing the number of innocent who are convicted.

 

[Jimmy Higgins]

The article points out that part of the solution is to have judges throw out convictions and require a retrial due to inadequate "advice from council" guaranteed by the constitution.

The article focuses on efforts to establish an empirical basis for showing that public defender could not have plausibly provided this given their workload, which research shows is about 4 times what it would need to be for them to provide minimal hours to mount a competent defense of their clients.

But the other part of that solution requires judges that actually care about human rights rather than throwing as many poor people and minorities in jail as possible. IOW, as with solutions to nearly every political problem, especially injustice in law enforcement, part of the solution is ensuring that Republicans hold as few public offices as possible, which also means as few conservative judges appointed by Republicans as possible. In fact, the Constitution technically only states that "advice from council", so conservatives are likely to try and claim that doesn't mean minimally competent council, only any non-zero amount of council from any person who has passed the Bar exam.

Exactly. We need accountability, something seriously in short supply these days.

Accountability or "Capacity"?

 

[Jimmy Higgins]

Getting funding for PD is difficult. The police and the DAs in most states can play on fear with anecdotes about horrible crimes.

That's the point.

Actually, I think ld's point was that PDs don't want adequate funding for PDs... wait a second... Police Department (PD)... Public Defender (PD), damn it!

The Police don't want a properly funded public defense set up... or the court system to handle it.

And you are "anti-law" if you dare suggest anything the police disagree with. Heck, you rarely see Police support a candidate with a D next to their name, forget about someone that wants to ensure Constitutional protections for those charged by the state.

The PD workload itself is clear evidence that most suspects represented by PDs cannot possibly be getting minimally competent council. If this fact can be used shift the burden of evidence and require DAs to prove that a given conviction was a rare instance of a suspect getting competent council, then many guilty defendants will go free, which is frightening to the public. It uses the same fear of the guilty going free that is currently used to fund the cops and DA to also fund the PDs to ensure that convictions of the guilty hold up. For those of us liberals who care about innocent poor people going to jail, this same extra funding will have the incidental byproduct of reducing the number of innocent who are convicted.

Last time I checked, no one cares what liberals want, they just want to put criminals on the street. Heck, Trump won on a campaign of "LWAAAAA AND ORDAH" *standing ovation*.

 

[laughing dog]

As an aside, one of my children is a Public Defender. He is amazed at the operational nonchalance of the police in his area towards the legal rights of suspects, and the aggressiveness of some of the assistant DAs in throwing the book at nonviolent offenders.