Left2Right

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Posted by: Sans Serfs

The problem, of course, is not those who perpetrate crime, but those who try to prevent and/or punish them. Another strong issue for the left. It's pretty interesting to see a political group which identifies on such a soulful basis with the losers in society. Why is this?

Posted by: Sans Serfs | Apr 29, 2005 7:28:20 AM

Posted by: Don Herzog

No, this won't do. I'm all in favor of criminals being punished. But it is absurd to conflate that demand of justice with cavalier indifference about whether criminal suspects get fair treatment at every stage, including defense at trial. Some of those suspects are in fact innocent, just to remind you. And even the guilty ones are entitled to a proper defense.

Posted by: Don Herzog | Apr 29, 2005 7:31:49 AM

Posted by: Sans Serfs

I will agree that far too many evil-doers end up in jail. More should have their income financially attached, or possibly spray painted and flogged. But there is a large segment of society which has detached from the main, and finds evil-doing amusing, deserving of MTV celebration, and perversely "normal". And, no, I don't think it's anyone's fault but their own.

But why don't we read posts here about the travails [ever! - it's not a good issue!] of their victims those who suffer from the actions of criminals - not too much angst about that at the grain coop these days, huh Don? Is it possible that academia still identifies with criminals as it has for decades? Why would that be? Hmmm....let's see....I'm not just living off the crumbs of capitlalism .....I'm an Outlaw! Please.

Posted by: Sans Serfs | Apr 29, 2005 7:55:46 AM

Posted by: Bernard

Sans, are you parodying a low-watt reactionary, or is this really you?

Posted by: Bernard | Apr 29, 2005 8:34:43 AM

Posted by: D.A. Ridgely

As one clever fellow wrote on Mr. Herzog’s post on incarcerations: legalize drugs, make the problem go away.

Here, however, I may surprise some by agreeing that the state should pay for competent legal representation for criminal defendants. The state is a juggernaut possessed of almost limitless resources to investigate and prosecute a defendant and it is only the rare multimillionaire who has anywhere near the resources at his disposal to combat that juggernaut effectively. Indeed, I’d like to see the same equitable principles of justice applied when the IRS comes after a taxpayer or the state or city tries to condemn someone’s private property, etc., etc.

Even so, matters may not be quite as bleak as Mr. Herzog portrays. In many jurisdictions most defendants do not remain incarcerated while awaiting trial, and any defense attorney will tell you that, constitutional guarantees of a speedy trial aside (and, believe me, what the courts have decided counts as speedy is pretty pathetic), it is to the advantage of any criminal defendant out on bail or a recognizance that a trial be delayed as long as possible. Memories fade, evidence gets lost, witnesses move away or die (sometimes even from natural causes!), etc.

Furthermore, let’s not kid ourselves. Yes, some innocent people do get caught in the net and their lives can be ruined by the system. However, the overwhelming majority of those defendants are, indeed, guilty, and many of them know better than their court appointed counsel how to plea bargain. In fact, you will often hear from prosecutors (who, themselves, have oppressive case loads) that the criminal justice system is held hostage by the criminal defendants, themselves – if they could only unionize effectively enough to all demand jury trials, they’d bring the entire system to its knees overnight.

We might also remember that public defenders and private attorneys who regularly represent criminal defendants (in D.C., what is somewhat derisively referred to as the “5th Street Bar”) are only poorly paid by comparison to successful private attorneys with civil practices. Compensation within the legal profession is, in fact, broadly distributed. A number of senior partners in major law firms charge well over $500 an hour (plus making money from their salaried associates’ billings), but government lawyers and small firm lawyers and public defenders, while they don’t get rich, all tend to make comfortably upper-middle class incomes.

There are scandalous cases of ineffective assistance of counsel, but I would largely blame the courts for permitting it. Trial court judges tend to come from the ranks of good trial court lawyers, and they damned well know when an attorney is making a tactical decision to refrain from objecting or introducing evidence or cross examining a witness, etc., and when that attorney is simply clueless. Judges are overworked, too, but they’re not all that overworked or poorly paid except again by comparison to the private civil bar and it is their responsibility to ensure that justice is being done in their courtrooms, including closely examining improvident plea agreements, incompetent attorneys, etc.

Posted by: D.A. Ridgely | Apr 29, 2005 9:57:02 AM

Posted by: Don Herzog

George Fisher has done extraordinarily fine work on how and why we have always relied heavily on plea bargaining.

And Mr. Ridgely is of course right that many suspects are not waiting in jail (though many are). I missed an edit: sorry.

Posted by: Don Herzog | Apr 29, 2005 10:18:19 AM

Posted by: Bret

Don Herzog wrote: "There’s a story of a woman in Gulfport, Mississippi who was in jail eleven months before a lawyer was appointed..."

Whatever happened to the concept of bail and bail bonds? In which case delayed trials are much less of an issue for the defendent.

Don Herzog wrote: "So what do these harried and hassled PDs do?"

That's easy. They quit! (I have a cousin who was a PD and did exactly that.

And don't forget about us harried and hassled citizens who constantly get jury duty summons. I just got a jury duty summons for a four month trial! With a $40/day stipend! I got out of it for financial hardship (I would've had to shut down the business, fire all of the employees, sell the house, etc.), but who can afford to have their family live on $40/day for 4 months?

As the always clever D.A. Ridgely wrote (twice now): "legalize drugs, make the problem go away."

Oh goody! We can continue on with our drug policy discussions now.

Posted by: Bret | Apr 29, 2005 10:28:49 AM

Posted by: paul

A typo, I think. In the first 2 paragraphs, you go from Wyoming to Wisconsin to Kentucky and finally back to Wyoming. Do you really mean Wisconsin, or did you confuse those two alphabetically similar states in the early hours of the morning?

Posted by: paul | Apr 29, 2005 10:56:09 AM

Posted by: Tad Brennan

Small query to DH:

"As far as constitutional interpretation goes, very crudely speaking, we might say that the plain text easily supports the rule and that the rule is clearly demanded by justice."

I would have thought that "easily supports" is stronger than you intended. Don't you want to say something like:

"the plain text is clearly *consistent* with the rule, and the rule etc."

I assume by "plain text" you mean something like "even a minimal, penumbra-free, originalist reading". Even on that reading, the 6th does not say the state *may not* provide counsel, and justice requires it etc.

Or do you find more positive support? And if so on which kind of reading?

Posted by: Tad Brennan | Apr 29, 2005 11:01:18 AM

Posted by: Tad Brennan

Mr. Ridgely--

"...public defenders, while they don’t get rich, all tend to make comfortably upper-middle class incomes."

I had thought this was not so, i.e. that PD's were getting more like 40-50 grand p.a. in some states. That might be middle class, but not upper-middle class.

Are my numbers out of date? (Or my class-boundaries?)

Posted by: Tad Brennan | Apr 29, 2005 11:07:43 AM

Posted by: DJmatheso

If the idea that the percentage of innocent defendants is low provides you comfort, doesn't it become somewhat less comforting as the number of defendants increases dramatically?

According to an article by one of those leftist Michigan professors: "There were 3,577 prisoners on American death rows at the end of 2001. The 73 death-row exonerations since 1989 amount to 2.04% of that population. There were a total of 1,404,032 inmates in American prisons at the end of 2001...if exonerations from that population had occurred at the same rate as on death row, there would have been 28,642 non-death row exonerations since 1989. (If we restrict our focus to prisoners who were convicted of murder, the expected number of exonerations would be 13% of that total or about 3,723.)."
http://www.mindfully.org/Reform/2004/Prison-Exonerations-Gross19apr04.htm

There are a number of reasons that this estimate may vary it is more likely to be too low than too high. Perhaps most importantly, more serious crimes generally go to trial, while as DH points out, in less serious cases defendants accept a plea. Individual examples are legion, but I would refer anyone interested in how innocent defendants get trapped into accepting plea-bargains to the Tulia Texas and L.A. Rampart Division scandals, or to the child-abuse "witch hunts" of the 1980s.

Posted by: DJmatheso | Apr 29, 2005 11:13:04 AM

Posted by: Don Herzog

paul, thanks for the correction. With somber regard for 'net etiquette on preserving the past in all its finicky inglorious integrity, I've used a strikeover to correct the post.

Tad, I don't want to delve into constitutional interpretation again. By "supports," I meant, "will comfortably bear the weight of." To remind everyone, here's the text of the sixth amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

So my claim is a bit stronger than that an affirmative entitlement to a lawyer is "consistent with" the text. It's that it's a sensible reading of the plain language, even though we know it isn't the originalist truth of the matter.

Posted by: Don Herzog | Apr 29, 2005 11:22:04 AM

Posted by: D.A. Ridgely

Mr. Brennan:

I may wrong. I certainly have no hard statistics readily available and don't know if, for example, your 40-50k range represents average figures or entry level figures, etc. (since most attorneys don't do PD work for more than a few years, anyway). I know that private attorneys doing publically funded defense work in D.C. can earn roughly double that. Honestly, it probably varies wildly from state to state, but my sense is that they are generally paid somewhere in the upper range of state / federal white-collar salaries, which I suspect most people would consider upper-middle class.

Posted by: D.A. Ridgely | Apr 29, 2005 11:25:49 AM

Posted by: Tad Brennan

"the accused shall enjoy the right...to have the Assistance of Counsel for his defence."

Ah--okay, I think I see.

To my naive ear, that does indeed suggest that the govt. has a duty to provide the accused with said assistance, and so the 6th provides positive support, not merely compatibility, with the PD system.

(Compare: the accused has the right to a speedy trial by jury. That means the govt. has to provide the venue and the jury. It does not simply say that the govt cannot interfere with the defendant's provision of his own courthouse and jury, paid for out of his own pocket. By parity of reasoning, the right to counsel should also mean a right to have govt provide counsel, not merely a right to have the govt not interfere with the accused's own provision of his own counsel.)

And I also see how the originalist reading, which imports the contemporary debates abt. govt's refusing to allow defendants to use counsel even if they provided it themselves, would argue for their more minimal reading of the 6th.

Interesting conflict between plain text and originalist.

Posted by: Tad Brennan | Apr 29, 2005 11:29:36 AM

Posted by: Tom

First off, I must say that I agree with the right for the accused to have assistance of counsel, even if provided pro bono by the government.

So the problem appears not to be a funding issue, but a supply and demand issue. We have a large number of accused seeking pro bono counsel from a relatively constrained supply of PDs. So the problem is that we don't have enough PDs. Do we need to train more lawyers in the hope that they will become PDs? Or is the solution you are proscribing to spend more money enticing attorneys in private practice to become PDs?

I have a hard time believing that we need to graduate more lawyers, so that means that we must entice many lawyers currently in private practice into becoming PDs. How much more do they need to be offered to get them away from private practice? Maybe if it wasn't so easy for lawyers to sue AT&T over cell phone bills so I could get a $7.00 coupon for AT&T Wireless products, supply and demand for PDs could begin to move back into balance. Somehow I doubt it though. I think that Mr. Ridgely's prescription;

legalize drugs, make the problem go away.

is the right first step to solving the problem. If the solution is to give local governments more money for the criminal justice system, my guess is that most citizens will prefer to see their taxes going to enforcement rather than efforts to defend the accused.

Posted by: Tom | Apr 29, 2005 12:03:40 PM

Posted by: catfish

I can't vouch for the information below, but the website below claims that the starting salary for a public defender in Kentucky is around 25,000 a year while California public defenders get closer to $86,000. This seems intuitively corrent to me. My wife is a law student in Alabama, and one of her friends is about to become a public defender in Mississippi, where IIRC the starting salary is in the $30,000s. Law students in general see public defender work as the worst legal jobs possible. The pay is low despite the fact that you have amassed the same amount of debt as someone who is going to work for a coporate law firm. Also, unlike jobs with the district attorney's office, PDs are not usually seen as a stepping stone to something better. As you can see from the graph, the working conditions are horrible. It is simply impossible to do right by your clients. Unfortunately, I don't see any political constituency out there with an interst in making sure that the public defender's office is adequately staffed and financed. Is this another instance of a problem that is only going to be corrected by the combersome hand of the judicial branch?

http://www.pbs.org/kqed/presumedguilty/3.2.0.html

Posted by: catfish | Apr 29, 2005 12:15:55 PM

Posted by: Achillea

I'll echo D.A. Ridgely here (shocking, I know). What percentage of these cases loading down our poor, beleaguered PDs are drug cases? I'll add in prostitution cases, too, since that's a pet peeve of mine.

As far as The law maintains a "strong presumption" that counsel's actions are reasonable goes, do you have any statistics that indicate that's an incorrect presumption? No doubt there are defense attorneys who botch things up, but just how prevalent is it, really? I've heard the 'sleeping PD' story before. In fact, I've heard it so many times that I get the distinct impression it's the only example of gross incompetence the people using it have to deploy. Now, no doubt some digging nationwide going back a decade or two would turn up other instances. But the Bureau of Justice page indicates there were 4.2 million cases employing PDs/other indigent counsel. In just 100 counties. In just one year. However much I deplore even the individual or infrequent injustice, I'm having trouble working myself into a lather worrying about a plague of inadequate counsel sweeping the country.

Further adding to the short shrift inadequate counsel appeals are met with by the courts may well be the practice by anti-capital-punishment lawyers of lobbing it automatically, without regard to its applicability to a given case.

Posted by: Achillea | Apr 29, 2005 12:25:36 PM

Posted by: ya honza

Professor Herzog raises a valid point. A wealthy Westside PB with famous defense attorney-gun does get different service than repeat offender O'Riley. And while many "public pretenders" do care and do work hard, many don't, since a win or loss doesn't really matter--the same for most smaller cases with defense attorneys, but his "batting record" is a bit more important, at least in the street . There are some statistics on this showing that rate of conviction for those suspects with pub. def or in pro per are higher than those with street attorney; also those who make bail are generally acquitted more readily than those who don't.

Among most of the inmates who can't afford a street attorney, the pretenders are thought to be rats who will strike up deals (as in back room) with DAs and judges; "lets put this old drug dealer away for 5 years in state, and you cut me some slack on this gangsta robbery case."

Plea bargaining with a public defender is also a crap shoot for many suspects. PD advises his client not to go to "the box" because his case load is overwhelming or he has a flashier case or has hunch or whatever. BY doing so client may get lesser sentence or dismissal (even if he is innocent but PD says he can't win), and then when he goes in Judge maxes him out. Street attorneys do this as well to avoid trials, but that seems to be quite common for PDs.

Even if the majority of the scum in the system belong there, 5-10% of men are being screwed--maliciously prosecuted and oversentenced or in many cases innocent (one could argue nearly all dope cases are bogus--especially for cannabis related). While crimefighters might cry one is sympathizing with the criminal by arguing for equal rights to legal representation, in reality 1 to 2 men out of 10 is probably a victim of wrongful conviction (as well police brutality, excessive police force, and exposed to disease, violence, rape etc.), and those are generally the guys who can't afford a decent street attorney.

Posted by: ya honza | Apr 29, 2005 12:50:45 PM

Posted by: DBCooper

I'd be interested to know what percentage of public defenders support drug legalization as a solution to their burgeoning caseload. Afterall, it is they who get to deal with America's finest day in and day out.

Another question: How much time is really necessary to prosecute the majority of these cases? I imagine most are just boilerplate form filling sessions that don't require much attention.

Posted by: DBCooper | Apr 29, 2005 1:06:44 PM

Posted by: D.A. Ridgely

A couple more points. First, I made the sweeping claim earlier that the overwhelming majority of criminal defendants are guilty. It’s true. Why? Well, for one thing, prosecutors hate losing and really do care about their record. With rare exceptions, they can choose not to indict or to nolle prosequi a doubtful case, and they do these things all the time. PD’s and private defense attorneys know full well that they would probably lose most of their cases at trial, so winning is defined for the most part as cutting the client the best deal possible. Frankly, we should all be very happy about this fact. The police don’t go around randomly arresting people, nor do DA’s risk their records on prosecutions when they doubt they can meet their burden of proof.

Second, ineffective assistance of counsel is a boilerplate ground of appeal. I suspect any appellate lawyer who didn’t throw it into the appeal could himself be accused of malpractice. The sad truth is that the standard is appallingly low in the first place. Take a day off sometime and sit in a criminal courtroom and watch the system in action. “The Practice,” it ain’t. In fact, most courtrooms would be an embarrassment to watch on Court TV.

Third, by all means let’s legalize prostitution, too. (Also gambling, though I’d, um, bet that accounts for few arrests these days.) The fact is, our criminal justice system is flooded precisely because of these sorts of arrests, convictions and incarcerations. Stop the madness. Free the resources. As Ross Perot would say, it’s as simple as that.

Posted by: D.A. Ridgely | Apr 29, 2005 1:26:59 PM

Posted by: Josh Jasper

Here's a thought: Creaqte a law that ties the number of PDs to be employed with a fair caseload to attorney ratio, and require all attorneys who make *over* a certain amount to serve as PDs for a portion of thier time. Thus, rich trial lawyers who're hated by the right are forced to serve the public, and people accused of crimes who cannot afford attorneys are given fair treatment.

Problem solved.

What do you folks think?

Posted by: Josh Jasper | Apr 29, 2005 2:06:46 PM

Posted by: ya hozna

Thinking that the appellate courts are there to remedy the wrongs of the trial courts and stand up for the defendant is about like thinking all catholic priests are holymen following scripture. The appellate courts exist not to protect the innocent but to protect their junior colleague-cronies. Over 90% of appeals are rejected (and the state supreme barons simply ditto the appellate at about 95%). I doubt 1 in 10 inneffective assistance of counsel writs are allowed if even read (en suepct there is a large circular folder for most in pro per writs). Appellate courts are sort of like referees, --they generally are not concerned about evidence or facts or even bias, but only with Zee Rules on motions etc. They are lower in the el culo el Diablo even then the trial court goons.........

Posted by: ya hozna | Apr 29, 2005 2:07:00 PM

Posted by: DBCooper

According to the Wyoming defenders report cited by Don Herzog, national guidelines recommend maintaining a level of 175 –200 new trial level cases per year per attorney. Following Josh Jasper’s suggestion would only require hiring or “volunteering” nine to ten extra attorneys for the entire State of Wyoming to bring them within compliance of those guidelines. I don’t see that as a huge problem.

The scale on that bar graph is exaggerated to the extreme. The 2003/2004 bar should be about three times taller than the 1983/84 bar...not forty times taller.

Posted by: DBCooper | Apr 29, 2005 3:02:33 PM

Posted by: Will

I have a question for all of the drug-legalizers here (and I say this as someone who finds Libertarian arguments convincing: just finished "constitution of liberty", props to DAR and mona for unintentionally motivating me to read it); given that, statistically, X% of persons that try (heroine,crack,crystal meth, ...) *will* become addicts -- does legalization really make sense in terms of total societal costs?
Despite our protected private spheres, everyone in America is connected: we share the same public spaces, we work together, shop together, our kids go to school together -- do we want to consign X% of our people to drug addiction and suffer the inevitable costs, as a nation?

Posted by: Will | Apr 29, 2005 3:29:25 PM

Posted by: Josh Jasper

given that, statistically, X% of persons that try (heroine,crack,crystal meth, ...) *will* become addicts -- does legalization really make sense in terms of total societal costs?

Sure, because the benefits outweigh the costs. The benefits are: destruction of the criminal classs of drug dealers, huge amounts of money freed up from the War On (some) Drugs, being able to treat and help those addicts without the criminal stigma, etc...

Yes, it's going to result in some more addicts than we currently have, but we'll probably be able to help a lot more addicts get off the drugs because they won't be having to hide anymore. So, we'll have a net loss in the number of addicts.

Posted by: Josh Jasper | Apr 29, 2005 3:43:56 PM

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