By James Kwak
If I write about a legal matter on this blog, it usually involves battalions of attorneys on each side, months of motions, briefs, and hearings, and legal fees easily mounting into the millions of dollars. That’s how our legal system works if, say, you lie to your investors about a synthetic CDO and the SEC decides to go after you—even if it’s a civil, not a criminal matter.
But most legal matters in this country don’t operate that way, even if you face the threat of prison time (or juvenile detention), and all the collateral consequences that entails (ineligibility for public housing, student loans, and many public sector jobs, to name a few). Theoretically, the Constitution guarantees you the services of an attorney if you are accused of a felony (Gideon v. Wainwright), misdemeanor that creates the risk of jail time (Argersinger v. Hamlin), or a juvenile offense that could result in confinement (In re Gault). The problem is that this requires state and counties to pay for attorneys for poor defendants, which is just about the lowest priority for many state legislatures, especially those controlled by conservatives.
In Crisp County, Georgia, home of the Cordele Judicial Circuit, this just doesn’t happen. In 2012, for example, there were 681 juvenile delinquency and unruly behavior cases. The public defenders handled only 52 of those cases, and we know that most of the defendants couldn’t have afforded private attorneys. The result is hundreds of guilty pleas resulting in detention by children who have no idea what their rights are.
We know this because of a lawsuit (complaint; summary by Andrew Cohen) brought by the Southern Center for Human Rights. (I am a member of the SCHR’s board of directors.) This is not an isolated case. The SCHR alone has repeatedly sued the state of Georgia for underfunding its public defender system to the point where defendants lack any reasonable semblance of representation. This problem is not confined to less-serious cases (which are, of course, still extremely serious to the person facing time in prison). In Alabama, for example, state law limits the amount that can be spent on a court-appointed lawyer to $1,500—for death penalty appeals. (That’s $1,500 total, not $1,500 per hour, for those of you who work on Wall Street.)
At one end of our legal system, it’s too hard to hold anyone responsible for blowing up our financial system and costing 8 million Americans their jobs. At the other end, we are shuttling thousands of young people into detention and prison (and forcing them to pay fees for the public defenders who don’t show up at their hearings) because we can’t be bothered to pay decent lawyers. Something is wrong here?