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Thursday, September 25, 2014

Judging The Right To A Lawyer

This morning's New York Times has a well-cited article on an upcoming trial seeking to reform New York State's county-run public defender system for poor criminal defendants. (In a curious allocation of attention and other resources, the United States Justice Department has weighed in, filing a statement of interest in this state class action.)

The problems listed in the article and also cited by the Justice Department happen to be true.

Innocent people -- not just the ones found "not guilty" (the two concepts are not the same) -- are wrongfully convicted, prosecuted, arrested and investigated every day. 

The criminal legal system is dangerously unbalanced in favor of the government. Prosecutors' offices have more resources than all but the wealthy defendants, so hiring a good criminal defense lawyer is beyond the reach of many lower-income defendants while middle-class defendants will often be wiped out financially in order to protect their freedom. Public defenders' offices are usually much less funded by comparison while their individual lawyers' caseloads can be larger.

But how to solve this problem?  Is the proposed solution of increasing the number of public defenders, the lawyers tasked with defending the really poor in criminal cases, going to work?

The organized criminal defense bar (a guild of sorts for lawyers who specialize in criminal defense) can be expected to be a little hesitant about any enhanced public defender programs. That is because reducing barriers to legal defense, subsidizing legal costs or outright providing many more public defenders, is likely to reduce the perceived value of all lawyers to all clients, no matter what speciality.  The value of any service is best supported when the person receiving the service and realizing its value is the same person who is paying for it.  Break those causal relationships down and you weaken any sense of value. Worse, you may create a greater sense of entitlement -- not just to a competent lawyer but to a "great" lawyer, and then to a "great" outcome, meaning, "I'm entitled to go free." (Just wait.)

The same value principle applies in the supermarket; if this week's can of corn is discounted to one dollar, the shopper may perceive its true value at that price, and refuse to buy it at next week's "regular" two dollar price.  So providing more "free" lawyers for whom clients do not have to pay threatens the value, and hence the livelihoods, of the lawyers who are able (whether by better reputational success or better client-building methods) to command higher fees.

Some will react by saying that lawyers are too expensive, so anything that drives down their rates is a good thing.  Funny thing is that most people who say that have no problem paying $1,000 for one ticket to sit in the rain to watch Derek Jeter's last home game (which I predict will be played, even if it takes until early Friday morning).

But look at what has happened when doctors' fees were cut, as their reimbursement levels from insurance companies have been falling for years, in a trend starting well before Obamacare took effect. If you are in a rural county in most of America, ask around to see how far you must travel to see an OB-GYN or oncologist. Expect your answer to be expressed in a number...not of miles...but of hours.

The lesson should be obvious: Cut the fees, and eventually you'll get a much narrower choice of service providers. You may also get much more assembly line service from lawyers, who increasingly outsource any "routine" task. These are the same criticisms leveled at doctors. 

One also has to wonder how one will judge the quality of the service. Will public defenders soon be subject to rating? Will a poor defendant get the best representation from a public defender who is under pressure to drive up his score? Could we have public defenders push defendants into going to trial, because the rating system requires some trial wins, so a convicted defendant never hears about a plea offer, and then does a much longer sentence because he gets convicted at trial?

I ask you to consider the myriad of problems that can still metastasize. 

Overall, it seems more funds should be allocated to all sides of the criminal legal system.

Prosecutors' offices should be better funded in order to retain the best, and often the most concerned, prosecutors. Don't forget the investigators who make those offices run. They also need better pay.

In a world where "you get what you pay for" remains as true as human nature, nothing threatens justice like incompetent, inexperienced or simply unsuited prosecutors who can wield extensive leverage in the form of government resources to threaten people -- often the wrong people. 

Public defenders' offices need equal funding simply to avoid basic clerical or managerial errors often arising from overburdened lawyers or their staffs.

And don't forget the judges. The judge is the last line of reason in a system which assumes but does not always produce the right "factfinding" coming out of the adversarial process. 

A reallocation of resources by governments should be sufficient to accomplish these objectives without raising taxes. Just think of the money wasted on transporting the hundreds of thousands of illegal immigrants who have been allowed to enter the country without inspection.

Now there's a civil rights twist: While legitimate American citizens languish in jails for months or years waiting for a trial that keeps getting delayed because of an overburdened judge, an overburdened public defender and an overburdened prosecutor, the federal government is spending money on illegal immigrants. Now let's have that discussion about "equal protection."

The reality is that our government spends money on noncitizens and plenty on foreign non-humanitarian foreign aid.

The starker reality is that to those of us on the ground here in America, where we see how mistakes can result in the horrible loss of years of freedom, the message to America's poor is that they are second-class and must wait their turn.

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