by Patrick H. Moore

There is a crisis of epic proportions brewing in the world of criminal defense. Due to the huge increase in the U.S. prison population over the past 50 years (approximately 1,000 per cent), combined with large spending cuts, the work load for public defenders all over the country now far exceeds the ability of these dedicated individuals to provide quality defense for their clients. This imbalance strikes at the very heart of our judicial system and threatens to undermine the very possibility of indigent defendants obtaining some measure of justice in criminal matters.

publicThe right to legal representation in criminal matters, whether or not you have the money to pay for it, has been a given in American jurisprudence for the last 50 years, ever since the United States Supreme Court unanimously ruled in Gideon v. Wainwright, 372 U.S. 335 (1963), that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys. This landmark ruling extended the identical requirement imposed on federal courts under the Sixth Amendment. Thus, since 1963, the right to counsel in any state criminal matter has been a constitutional right.

The basic notion is simple. If you are charged with a crime, you have the legal right to be assigned a lawyer free of charge to represent your best interests in your case. Why is this necessary? First of all, when criminal charges have been brought against you, at some point in the proceedings you are going to have to make an informed decision whether to plead guilty or go to trial. So how do you make that decision? How do you weigh the pros and cons of your particular situation?  Well clearly, you discuss it with your lawyer. Although you must ultimately decide whether to plead guilty or go to trial, you have a much better chance of making the right decision if represented by an able defense attorney.

In the event that after substantial discussion  of your case with your lawyer, you decide that you do want to exercise your constitutional right to be tried by a jury of your peers, your case suddenly becomes infinitely complex. There are pre-trial motions to be written and filed, witnesses to be located and prepared for trial, and overall strategies to be mapped out. Then comes the complex mechanics of the trial itself. Without a lawyer, the typical criminal defendant has absolutely no chance of adequately defending himself at trial.

balacneAlthough the situation is arguably less complex in cases where the defendant decides to plead guilty, the degree of complexity will still prove daunting to the typical individual who might consider representing himself (which, of course, most judges strongly discourage). For starters, once the decision is made that the defendant is going to plead guilty, the defense lawyer must then work to negotiate the best possible deal for his client. As part of these negotiations, defense counsel may construct a mitigation package, which typically involves presenting the defendant’s personal history accompanied by a packet of character reference letters to both the prosecutor and the judge (this is the kind of work my firm does at both the state and the federal level in privately-retained cases). Devising an effective mitigation package is very time consuming and requires considerable expertise. In the event that that the district attorney’s office and defense counsel cannot come to an agreement, defense counsel must then plead his or her client in a manner that allows the judge, not the prosecutor, the final authority to sentence the defendant appropriately.

The bottom line is that the typical criminal defendant absolutely requires effective legal representation whether he pleads guilty or chooses to go to trial.


The Concrete Details of the Crisis

careThe Minneapolis, Minnesota Law Office of Carolyn Agin Schmidt has prepared an attractive and informative Infographic called “Criminal Defense Is a Constitutional Right” that breaks down the concrete details of the crisis in representation facing public defenders nationwide and their clients.  Click here to view the Infographic. Some of the key points are as follows:

  • Every criminal defendant is entitled to a defense attorney. This right is set forth in both the Sixth Amendment (for federal matters) and in Gideon v. Wainwright (for state matters).
  • Since 1963, America’s prison population has multiplied more than TEN times, increasing from 217,000 inmates to approximately 2,300,000 inmates.
  • Providing legal representation to all indigent defendants nationwide would require public defenders to work an average of 3,035 hours per year — which translates into approximate 60 hour work weeks with no time off.
  • gavelTo make matters worse, due to the Sequestration, public attorneys must now take 22 days of furlough time annually. This results in attorneys having fewer days to prepare for cases and less time to investigate  the cases they’re working on. Meanwhile, their staffs have been cut back and due to budget constraints, they have less ability to pay for expert witnesses.
  • The situation is especially bad in Minnesota where the number of public attorneys would need to double in order to adequately represent all indigent defendants.
  • The average public defense attorney is assigned to 250 felony cases a year. The American Bar Association (ABA) has stated that the proper number of cases annually is 150.
  • To its credit, Minnesota has passed a $10.6 million  funding bill which provide $5 million to increase employee salaries and benefits and $5.6 million to fund new public defender positions in order to reduce caseloads.

justThis crisis in providing adequate criminal defense for society’s neediest individuals is emblematic of the manner in which the erosion of the middle class has systematically created an ever-increasing underclass who are not afforded the same rights and privileges that the middle class and the elites have long taken for granted. If this situation continues and the middle class continues to shrink, more and more individuals will find themselves in difficult economic straits. Many of these folks will eventually find themselves in trouble with the law and will have to make due without adequate legal representation, in violation of the Constitution.









9 Responses to Crisis in Criminal Defense: Right To A Lawyer Is In Grave Jeopardy

  1. Some of the key points are as follows,order to adequately represent all indigent defendants.
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  2. which translates into approximate 60 hour work weeks with no time off.

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  3. sillhouine says:

    Very helpful info, thanks! Prison population can only grow so much.. These tips will help me find the right criminal defense lawyers in Charlottesville, VA for my friend.

    • Patrick H. Moore says:

      I’m glad we can be of some assistance. Please let us know if there’s anything else we can do for you.

    • Prison population is a problem I must agree with you but the population shouldn’t be that much if our political parties does not show biased law to us. A lot of people are in the jails for nothing or may be for the doubt of police. :(

  4. . Then comes the complex mechanics of the trial itself. in violation of the Constitution.

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  5. they have less ability to pay for expert witnesses.If this situation continues and the middle class continues to shrink,
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  6. It’s sad how many people we imprison for crime, especially marijuana related crime…and now we are seeing how it affects others being able to gain access to criminal defense lawyers in Charlottesville, VA.

  7. Ellen says:

    A 1,000 percent increase in the prison population is quite large, and McKinney DWI lawyer is right that many people are in jail potentially without cause. Obviously if those people weren’t imprisoned, there would be less cases for public defenders. Either way, these folks are overworked and under-appreciated. Hopefully the progress Minnesota is making will be replicated in other states too.

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