No Money, No Justice

Do public defenders deserve scorn, or bigger budgets?

Radley Balko from the December 2007 issue

Defending the Damned: Inside Chicago’s Cook County Public Defender’s Office, by Kevin Davis, New York: Atria Books, 308 pages, $25

Advanced DNA testing has compelled America to confront some uncomfortable truths about its criminal justice system. In 2000 Illinois Gov. Jim Ryan imposed a moratorium on executions in his state after DNA tests exonerated 13 death row inmates, several of whom had come perilously close to their execution dates. In March 2007, the noted defense attorney Barry Scheck’s Innocence Project, which uses DNA testing to identify the wrongfully convicted, marked its 200th exoneration.

Durham District Attorney Mike Nifong’s recent pursuit of three Duke lacrosse players on rape charges has further raised awareness about the possibility of wrongful prosecution. Nifong’s case began unraveling when testing showed no DNA from the three accused rapists on the body of the alleged victim. The victim also repeatedly contradicted herself, and implicated a defendant who was demonstrably not present at the time of the alleged assault. North Carolina Attorney General Roy Cooper eventually declared the players innocent of all charges, and Nifong was disbarred. The case was unusual in that it attracted national attention, and because the race and class of the defendants helped middle- and upper-class whites identify with them. Much of America saw for the first time, in close detail, how an aggressive prosecutor could ruin the lives of innocent people.

The Duke lacrosse players were able to afford top-flight legal representation. One of the accused players, Reade Seligmann, said after he was declared innocent, “I can’t imagine what they do to people who do not have the resources to defend themselves.”

According to the U.S. Department of Justice, two in three people charged with felonies in federal court can’t afford an attorney. In state courts, the proportion is four in five. These people are assigned public defenders, the much-maligned advocates who represented the accused in most of the wrongful convictions mentioned above.

Journalist Kevin Davis’ book Defending the Damned: Inside Chicago’s Cook County Public Defender’s Office should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there’s actually some merit to the public defender’s familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.

Davis spent the better part of a year shadowing the lawyers on Chicago’s Murder Task Force, the elite office where the city’s best public defenders eventually end up, representing defendants in high-profile homicide cases. Davis writes in the preface that he wants to get beyond what public defenders sometimes call “the Cocktail Party Question,” namely, “How can you defend those people?” He introduces his discussions of that question with the Murder Task Force lawyers by describing some gruesome homicides committed by people the task force has defended. In one particularly horrifying example, the young parents Joan Tribblet and Everette Johnson choked their infant girl to death to stop her from crying and then, to cover up the crime, cut her body into small pieces, breaded and fried them, and fed them to alley dogs. Task force lawyers were successful in sparing both from the death penalty. In another case, a man sexually assaulted a little girl with a shotgun, then fired the weapon during the act.

So how can they defend those people? Davis finds a wide range of motives. Some public defenders are building careers, and value the trial experience they can get right out of law school. Some fight simply out of opposition to the death penalty. Others subscribe to a broader, vaguer notion of representing the powerless against the powerful. Some just relish the challenge.

But most rightly see themselves as an indispensable part of a fair criminal justice system. Davis finds an eloquent explanation of that position in the autobiography of Gerald Getty, the longtime Chicago public defender who represented serial killer Richard Speck in 1967. Speck was convicted, and Getty received a barrage of public scorn for defending him. Nevertheless, he says it was among the proudest moments of his career. “I thought by defending Speck I was helping make democracy work,” Getty wrote. “We tried that case in the best traditions of the legal system.” Davis adds, “By offering Speck a first-rate defense, as was his obligation, Getty also helped reinforce his guilt.”

As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone’s freedom, the defendant has an “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’ ”

Most people don’t care much for public defenders. The job is often despised not just by prosecutors, victims, and the public, but by defendants themselves, who see the lawyers as at best second-rate and at worst just another cog in a machine designed to crush them. Some don’t want a defense and can be openly hostile, even threatening.

The common thread Davis finds among the public defenders seems to be cynicism, if not fatalism, about the criminal justice system. “I’ve heard attorneys here say, ‘I want a case where there’s no chance of winning,’ ” Shelton Green, head of the Murder Task Force, tells Davis. “That way, you can’t fuck it up. But if you win, it’s a miracle.”

Yet embedded in that cynicism Davis finds an unwavering dedication and passion among the task force attorneys, often to the detriment of their families, relationships, and health. Davis describes public defenders driven into alcoholism, broken marriages, and heart attacks by the stress and hours that come with the job. Still, Defending the Damned may fail to generate much sympathy for public defenders, even though Davis acknowledges that he grew to respect and admire them while writing the book.

One reason is the book’s focus: the trial of accused cop killer Aloysius Oliver. The public defender assigned to represent Oliver is a brash, ostentatious lawyer named Marijane Placek. Placek might evoke grudging respect from readers for her prowess in the courtroom, but she’s hardly a sympathetic personality. She is icy, sometimes even rude, to the families of murder victims and is openly contemptuous of police, judges, and prosecutors. She seems to tackle her job with few guiding or undergirding principles: She supports the death penalty, for example, but fights to spare her clients, even those who have pleaded guilty, from getting it. (It was Placek who defended Joan Tribblet in what the attorney rather crudely calls the “Kentucky Fried Baby Case.”) She tells Davis she chose to be a public defender for no other reason than that, at the time, the position paid more than what a starting state’s attorney was getting. She thrives on whiskey and steak, throws lavish parties, and proudly sports an abrasive personality.

Although Placek occasionally gives obligatory nods to notions of fighting for justice or sticking up for “the little guy,” her motives seems to stem largely from a bruised ego: She’s a full-figured woman who has spent much of her life fighting ridicule and low expectations. “She wanted to be a winner at all costs,” Davis writes, “to turn upside down the way she was perceived and treated in the courtroom.”

All this makes Placek a fascinating character but a poor starting point for discussing the adequacy of the public defender system. That’s unfortunate, because Davis interviewed several lawyers in the same office who embody many of the more admirable characteristics of the job.

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Anonymous Bastert|11.29.07 @ 1:52PM|#

Nice piece.

|11.29.07 @ 1:54PM|#

Did you know Ron Paul is an anti-semite? I have been a libertarian for decades.

Geotpf|11.29.07 @ 1:56PM|#

Wait, a Reason article that is asking for MORE governmental spending (giving public defenders more money)? Isn't that "un-Libertarian" or something?

(Of course, I absolutely agree that public defenders are underfunded. But I'm not a Libertarian.)

|11.29.07 @ 2:05PM|#

Actually, considering that a right to counsel is a Constitutionally guaranteed right and tmost libertarians believe that people deserve adequate legal defense, I don't think too many people here will oppose it. (Though I won't be surprised)

Davis writes in the preface that he wants to get beyond what public defenders sometimes call "the Cocktail Party Question," namely, "How can you defend those people?"

And in a just world, people who read about all the innocent victims who were sentenced to death would ask D.A.s "how can you prosecute those people?"

LarryA|11.29.07 @ 2:06PM|#

Wait, a Reason article that is asking for MORE governmental spending (giving public defenders more money)? Isn't that "un-Libertarian" or something?

There are actually two ways to achieve parity. We could also cut the prosecutors' budget.

Cutting the number of laws about 90% would facilitate that.

Libertarian enough for you?

|11.29.07 @ 2:09PM|#

Wait, a Reason article that is asking for MORE governmental spending (giving public defenders more money)? Isn't that "un-Libertarian" or something?

Not a bit. Most libertarians admit the need of law enforcement and criminal justice systems. Most of us believe in "innocent until proven guilty". Put those two convictions together and you are MORALLY OBLIGATED to provide a defendant with the means for an adequate defense.

That's how I reason it out.

Geotpf|11.29.07 @ 2:12PM|#

LarryA-That's certainly a more Libertarian line of thinking, although it is not the one argued in the article.

Although I happen to agree with this line of thinking as well. (I am in favor of eliminating all laws against "victimless crimes", namely laws against things like drugs, prostitution, gambling, etc.)

thoreau|11.29.07 @ 2:19PM|#

Yep, I think we could give bigger budgets to public defenders (at least on a per-case basis) and still cut overall spending if laws were saner (i.e. we spent less $ prosecuting certain things).

|11.29.07 @ 2:22PM|#

As a libertarian and former PD, I agree with Radley's piece and with LarryA's comments. We could eliminate laws against consensual behavior and reform our criminal code to prevent jail time for smaller, nuisance offenses (such as disturbing the peace, etc.). This would lower the work load for cops and courts.

Good piece. I hope it causes some people to think.

Mr. X|11.29.07 @ 2:24PM|#

Good review Radley. Given all of the evidence of government incompetence and malfeasance in every area of activity, why would anyone trust that a person is guilty based on government day-so? That's what Posner's bullshit argument against good public defenders boils down to.

Full disclosure: I've accepted a position as a public defender starting this coming June.

|11.29.07 @ 2:24PM|#

Yep, I think we could give bigger budgets to public defenders (at least on a per-case basis) and still cut overall spending if laws were saner (i.e. we spent less $ prosecuting certain things).

That's obvious here. Do you recall any politicians getting elected promising to repeal laws? Not reform, repeal and replace with nothing. Me neither. Depressing isn't it.

Geotpf|11.29.07 @ 2:30PM|#

I should further explain my political viewpoint, and why I'm sort of calling out the concept of Libertarianism here.

I refer to myself as a "Libertarian Democrat". I differ from the Libertarians because I believe in, amoung other things, a government safety net (welfare, public health care, public transit, etc.), and I think the government should charge taxes to the more well to do people to pay for such. I do agree that government interference in what people do should be as small as possible (I don't like complicated business regulations, or laws against victimless crimes, or most/all gun control, etc.), and I believe in a Paul-style military that is basically for domestic defensive purposes only instead of blundering all over the world, attacking mostly fictitious enemies (like Iraq).

However, I'm having a hard time understanding this logic:

1. If a poor person is charged with a crime, the government should pay for thier lawyer.

BUT

2. If they aren't charged with a crime, fuck them if they can't afford food or housing or medical care.

It strikes me as inconsistant, to say the least. Either say "fuck them" all the time (which is cruel, IMHO), or help them out all the time. I don't get it.

The Libertarian position on #2 is that private charities should provide for that sort of thing-why shouldn't the Libertarian position on #1 be the same?

|11.29.07 @ 2:35PM|#

"Perhaps, given recent headlines, there's actually some merit to the public defender's familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct."

The fact that this isn't common knowledge scares me. The fact that Dick Posner thinks a 2.5 to 1 funding advantage is "optimal" truly horrifies me.

Mr. X|11.29.07 @ 2:47PM|#

However, I'm having a hard time understanding this logic:

1. If a poor person is charged with a crime, the government should pay for their lawyer.

BUT

2. If they aren't charged with a crime, fuck them if they can't afford food or housing or medical care.

It strikes me as inconsistant, to say the least. Either say "fuck them" all the time (which is cruel, IMHO), or help them out all the time. I don't get it.

The Libertarian position on #2 is that private charities should provide for that sort of thing-why shouldn't the Libertarian position on #1 be the same?

The big differences are:

a) #1 will be fined, incarcerated, or executed by the state. #2 is harmed by inaction, but not through active state action.

b) #1 is accused of doing something very bad. There are few, if any, charities that support helping very bad people. #2 is down on his luck and there are lots of charities that will help with that.

c) It should also be noted that prior to Gideon v. Wainwright, most states did say "fuck 'em" to the indigent criminally accused.

Michael|11.29.07 @ 2:49PM|#

Some coincidence...

http://www.chicagotribune.com/news/local/chi-hollowaynov29,0,322020.story?coll=chi_tab01_layout

|11.29.07 @ 2:49PM|#

The Libertarian position on #2 is that private charities should provide for that sort of thing-why shouldn't the Libertarian position on #1 be the same?

I can't speak for all libertarians, but I would argue that the difference is that the courts are a government construct to begin with, and once you take on the responsibility of creating a judicial system, it's your responsibility to see that it's run equitably. If the government gives itself the power to strip somebody of his/her freedom, it must also ensure that it is done fairly. Thus we have the Constitution to ensure due process, and providing public defenders is an extension of said due process.

|11.29.07 @ 2:52PM|#

Isn't that "un-Libertarian" or something?

Drink!

|11.29.07 @ 2:53PM|#

Although I happen to agree with this line of thinking as well. (I am in favor of eliminating all laws against "victimless crimes", namely laws against things like drugs, prostitution, gambling, etc.)

Yeah, tell the rash on my nether-regions that prostitution is victim-less!

carrick|11.29.07 @ 2:54PM|#

1. If a poor person is charged with a crime, the government should pay for thier lawyer.

If the government plans to put you in jail, or worse yet, take your life -- then it is clearly necessary to ensure that the defendant has adequate representation. Including the cost of "public defense" into the overall cost of criminal justice is not wildly beyond libertarian thought.

2. If they aren't charged with a crime, fuck them if they can't afford food or housing or medical care.

If the government wasn't involved in making you poor, why should the government be involved in shielding you from the consequences of being poor.

Note, I have no qualms with providing safety net services to prevent the poor from freezing or starving to death. But that safety net has be that. Catch you when you fall, roll you out of the net, then send you on your way. Long term public support is not the same as a safety net.

New World Dan|11.29.07 @ 2:54PM|#

Geotpf,

1) There is a constitutional right to a fair trial. To that extent, defendents should have the same resources that the prosecutor's office has.

2) It isn't necessarily unlibertarian to support those that can't fully support themselves. The biggest problem I have is the manner and extent of the way it's done. It pretty much guarantees that people will remain in the system. But that's well outside the scope of this thread.

|11.29.07 @ 2:55PM|#

Im wondering if there are provisions for Public Defendants for civil litigation?

|11.29.07 @ 2:56PM|#

However, I'm having a hard time understanding this logic:

1. If a poor person is charged with a crime, the government should pay for thier lawyer.

BUT

2. If they aren't charged with a crime, fuck them if they can't afford food or housing or medical care.

Oh c'mon, you've got to be able to reason better than that. Number 1 is the purest form of government coercion. If the government, on my behalf, attempts to convict and incarcerate someone, then I and other taxpayers have at the least a moral duty to provide a defense for an indigent defendant.

The coercion in number 2 is aimed solely against taxpayers expected to foot the bill for others' living expenses.

The difference has nothing to do with "helping" versus "not helping," and you're being daft or disingenuous by suggesting so.

carrick|11.29.07 @ 2:56PM|#

Yeah, tell the rash on my nether-regions that prostitution is victim-less!

Unless you were raped, you are suffering the consequences of your own bad decisions.

Geotpf|11.29.07 @ 2:56PM|#

There are plenty of charities who "help very bad people". What do you think occurs when a lawyer represents somebody "pro bono"? Plus, there are many prisoner right's organizations and the like, plus groups like the ACLU. Even if there weren't any of those, why would that change the Libertarian point of view? If there were no church-run soup kitchens, would that make Libertarians support welfare?

I guess I'm saying I don't understand why Libertarians don't think Gideon v. Wainwright was wrongly decided.

The argument seems to be your first point, a difference between harm via state action as opposed to state inaction. I see that as really splitting hairs-the outcome is the same.

Mr. X|11.29.07 @ 2:58PM|#

I'm wondering if there are provisions for Public Defendants for civil litigation?

Some states have started programs like this, especially for family law cases, but they are not Constitutionally guaranteed nor very common.

Geotpf|11.29.07 @ 2:58PM|#

Taktix-I believe in government safety regulations. I would have no problem with, in fact would favor, the government regulating prostitution, requiring tests for sexually transmitted diseases, for example.

Geotpf|11.29.07 @ 3:02PM|#

carrick-I agree that, for the most part, welfare-type programs should be aimed towards job training and the like more than a permanent situation. There are exceptions-the handicapped and disabled, for instance. They should receive permanent government help if they are not able to work.

Mr. X|11.29.07 @ 3:03PM|#

I guess I'm saying I don't understand why Libertarians don't think Gideon v. Wainwright was wrongly decided.

If the government is going to spend money to put you in jail, it should spend a little extra to protect your rights and ensure the fairness of the conviction.

Should there be far fewer crimes that we spend money prosecuting people for? Yes. Should we be penny-wise by trying to save money on the defense side? No.

The argument seems to be your first point, a difference between harm via state action as opposed to state inaction. I see that as really splitting hairs-the outcome is the same.

If you think that drawing a distinction between (a) being poor and hungry and (b) having a prosecutor throw your ass in jail is "splitting hairs" and that "the outcome is the same," then I don't know how I can convince you that public defense is Libertarian.

|11.29.07 @ 3:03PM|#

Geotpf: The government is not actively trying to starve homeless people. It does actively try to convict criminal defendants.

carrick|11.29.07 @ 3:05PM|#

The argument seems to be your first point, a difference between harm via state action as opposed to state inaction. I see that as really splitting hairs-the outcome is the same.

There is a major moral difference between causing harm through intentional action and allowing harm to occur through inaction. The outcome is not the determining factor.

If I push a man off a bridge and he drowns, I have committed a violent crime.

If I choose not to get into the water with a drowning man in an effort to save him and then he drowns, I have not committed a crime.

The outcome is totally irrelevant.

|11.29.07 @ 3:06PM|#

Some states have started programs like this, especially for family law cases, but they are not Constitutionally guaranteed nor very common.

Then I think the criminial PD defenses are completely in tune with Libertarian principles. Once we move into civil litigation we get into greyer areas...

guess I'm saying I don't understand why Libertarians don't think Gideon v. Wainwright was wrongly decided.

Look at this way. First there was nothing. Then you went and created this quasi-entity with unlimited funds that has the power to coerce/incarcerate/kill you called the government/judicial system. So Libertarians feel that is also completley appropriate that you created a counter point to help defent you from that entity if you cannot do it yourself.

With food and shelter. There was nothing and you lived in a mud hut and hunted for a living. You created this enitity called the government, and nothing changed you still lived in mud hut and hunted for a living. Then some people built better homes and began mass production of food etc... And then you decided you want to live like they do and eat like they do, the government really doesnt enter the picture as arguably you would have achieved a similar result with or without it.

|11.29.07 @ 3:09PM|#

P.S. Radley nice piece, once of the better ones in Reason in a while, even though its only a book review. I think I'll pick a copy and give it a look see.

x,y|11.29.07 @ 3:45PM|#

The argument seems to be your first point, a difference between harm via state action as opposed to state inaction. I see that as really splitting hairs-the outcome is the same.

If you see this as hair-splitting, you're probably a lot shorter than you think on the "Libertarian" part of that whole "Libertarian Democrat" thing. Much of libertarian philosophy is predicated on the idea that the state should be involved in our lives to the least extent possible. Some of us disagree as to where to draw the line, but that's a basic premise. Now, with a state performing only limited functions, the difference between state action and state inaction is hardly hair-splitting.

|11.29.07 @ 3:52PM|#

Great piece Radley.

For Geotpf: This is the most relevant part of the article to libertarians/ism:

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it's also obliged not to violate our rights in the process.

|11.29.07 @ 4:27PM|#

I think that all taxation should be on a voluntary basis. If people wanted to elect to participate in the "fund public defenders" box on their tax form, they could do so. If they declined that coverage, and thus didn't pay that part of their tax options, they would not be eligible to get a public defender if they wound up on the wrong side of the law. A similar system would work for the law enforcement budget -- decline to support it, you're on your own if someone robs or assaults you.

Anticipatory rebuttal -- if you think that public defense is a "right", you'd be free to express that POV by digging into your own pocket to fund it even if you thought you'd never have to avail yourself of a public defender. And if hardly anyone volunteered to fund it -- why should the overwhelming majority who oppose funding it based on their revealed preferences (rather than that much less reliable indicator, their professed public preferences) be forced to do so?

|11.29.07 @ 4:32PM|#

I think that all taxation should be on a voluntary basis. If people wanted to elect to participate in the "fund public defenders" box on their tax form, they could do so. If they declined that coverage, and thus didn't pay that part of their tax options, they would not be eligible to get a public defender if they wound up on the wrong side of the law. A similar system would work for the law enforcement budget -- decline to support it, you're on your own if someone robs or assaults you.

as long as there is a checkbox on there to opt out of the judicial system all together, that is, the governement would have no right to enforce any of their laws against me, your idea sounds good.

Mr. X|11.29.07 @ 4:33PM|#

Dave Woycechowsky|11.29.07 @ 4:33PM|#

achieve parity

Bless you for mentioning my meme on this topic.

Some ppl think I am just about The Syrup.

carrick|11.29.07 @ 4:37PM|#

achieve parity

Unachievable . . . even totalitarian, socialistic governments can't achieve parity.

|11.29.07 @ 4:41PM|#

Anticipatory rebuttal

Prebuttal is the preferred word.

|11.29.07 @ 4:45PM|#

Some states have started programs like this, especially for family law cases, but they are not Constitutionally guaranteed nor very common.

Each state has numerous nonprofit legal-services providers that assist the poor with legal matters on the civil side of things. Many of these groups receive state and/or federal funding. Unfortunately, some of the larger of these groups tend to use this funding to get into activist litigation, rather than helping the poor with their everyday legal needs, i.e., family and estate law, consumer issues, etc.

This stuff tends to slide into activism (suing to overturn law rather than seek rights under it) because the programs are run by a fairly close-knit cadre of activist lawyers with a close connection to funding sources, and because poor folks are almost always going to be plaintiffs in lawsuits (other than in family law cases), since there isn't much to gain by suing poor people.

|11.29.07 @ 4:56PM|#

Great idea, except the nature of indigent defense is that the people are indigent, meaning they don't pay taxes.

Mr X -- everyone who isn't indigent but believes in providing a free defense for the indigent could voluntarily pay the taxes for it -- or, if they think the government public defenders are incompetent, they could decline the tax option and contribute to a private legal defense fund for the indigent.

Or, are you saying that hardly anyone, including people like you and Radley Balko (and joe, and all the other non-libertarian liberals who hang out here) who profess to believe in the importance of public defenders, would actually decline to pay for them given the choice? If so, see my prebuttal (thanks, de stijl) above.

Of course, the government could use shaming -- publishing on a website the names of everyone who declined to contribute toward public defenders -- to enhance the participation rate of those hypocrites who say they want this public good, but will only pay for it if forced or shamed into doing the right thing.

Mr. X|11.29.07 @ 4:58PM|#

This stuff tends to slide into activism (suing to overturn law rather than seek rights under it) because the programs are run by a fairly close-knit cadre of activist lawyers with a close connection to funding sources, and because poor folks are almost always going to be plaintiffs in lawsuits (other than in family law cases), since there isn't much to gain by suing poor people.

There's also the situation where a lawyer sees 50 clients who all have the same problem come through the door and figures that changing the system would be better than trying to fix each case on its own. Not sure whether that's good or bad, but that enters into it.

|11.29.07 @ 5:09PM|#

Lets say we have two hypothetical situations:

Person A is executed by the government for a crime of which he was innocent, due to him being too poor to defend himself properly in court.

Person B dies from starvation due to not having enough food.

The libertarian position is that the first case is unjust but not the second, because the government didn't actively kill person B.

But lets say person B lived 12,000 years ago, when humans were still thinly scattered around the earth. In that case he would have had access to all kinds of fruits, berries, wild animals to hunt, land to farm, etc, assuming he had the wit to do it. But in the modern age all that stuff is private property, the land has all been parcelled out, and it's protected by the government. The government HAS actively killed him by protecting private property.

In other words, man's state of nature is NOT poverty - he has the earth and all the flora and fauna bequeathed to him by 4 billion years of evolution.

Of course in reality person B is probably still more unlikely to die in the modern age, even without government help, because of private charity, or scraps thrown out by people with more food than they need. But consider a hypothetical situation where private property is absolutely protected and for some reason (maybe he smells bad) no one provides him with charity.

Hasn't some right of his still been violated? Why do the people with property deserve to live but person B deserves to die? This is what is at the heart of what's wrong with libertarianism in it's purest form - property rights are certainly a good construct and there are many good reasons for having them - but they cannot be absolute.

|11.29.07 @ 5:11PM|#

That last post I made was a bit OT but it's directed at Geotpf and those arguing with him, in case that wasn't obvious.

|11.29.07 @ 5:30PM|#

"""I think that all taxation should be on a voluntary basis. If people wanted to elect to participate in the "fund public defenders" box on their tax form, they could do so. If they declined that coverage, and thus didn't pay that part of their tax options, they would not be eligible to get a public defender if they wound up on the wrong side of the law.""""

I liked the first sentence. But have you ever read the Bill of Rights? Or any SCOTUS rulings about fair representation at trial? Cause you're way out of the ball park.

Fairness, not FU you poor piece of shit, is a foundation of our judical system. If you don't believe in that, I refer you to Dan T for instruction about what to do.

I may be a bit idealistic/obtuse, but I don't see the same conclusions that Radley makes here just from his article. There is no question that public defenders are critical to our system of justice, but why should their funding be the same as for prosecutors? As Radley states, the prosecution has to prove the accused guilty, but the PD can sit on their ass and win the case.

I tend to agree a bit with Posner in that the point of the PD is to make sure that we do everything possible to not convict innocent people, for which I am sure we are underfunding PD's, but for which we don't need to be close to parity. As for forensics and the police, wouldn't it be better to work towards having these departments be more impartial rather having building parallel organizations at taxpayer expense?

Personally, I'd rather see Radley and others focus on what he does so well already, which is stop current police tactics, which have gotten way to confrontational and overblown, and fight the ever-increasing, ever-more-intrusive laws that our politicians continue to pass. Whatever happened to "To Protect and To Serve?"

|11.29.07 @ 5:33PM|#

Unachievable . . . even totalitarian, socialistic governments can't achieve parity.

With the exception of the Patriots, the NFL does a pretty decent job of it.

|11.29.07 @ 5:36PM|#

However, if the government is responsible for you being unable to find work because their regulations and taxes have destroyed the jobs you would have had, do they then have an obligation to support you?

|11.29.07 @ 5:41PM|#

But lets say person B lived 12,000 years ago, when humans were still thinly scattered around the earth. In that case he would have had access to all kinds of fruits, berries, wild animals to hunt, land to farm, etc, assuming he had the wit to do it

This argument is wrong on two points. If he lived 12 kiloyears ago, he would be FAR more likely to be starving even if he had his "wits."

And if he had his "wits" in a 21st century free world econmomy, he wouldn't be starving. In fact, I see insane/drug addled/retarded people on the sidewalks of Detroit every day. None of them are starving. This is America. Even our poor people are fat.

|11.29.07 @ 5:44PM|#

And the Patriots are dominating despite the best efforts of the NFL and the officials.

|11.29.07 @ 5:47PM|#

I tend to agree a bit with Posner in that the point of the PD is to make sure that we do everything possible to not convict innocent people, for which I am sure we are underfunding PD's, but for which we don't need to be close to parity.

My experience with criminal law is minimal (mainly consisting of a summer during law school working for the NU Center on Wrongful Convictions), but I would argue that while the legal burden is on the prosecution, and the PD can theoretically win a case by doing nothing, that's not how it works in practice. I think Radley's strongest argument is that access to resources (such as DNA testing, experts, etc.) is key. Remember that once a defendant is convicted, there is a HUGE burden to overcome on appeal. So it's pretty important that a defendant get adequate representation the first time around.

src|11.29.07 @ 6:14PM|#

quiet one: I'm inclined to agree. If the goal is to convict as few innocent people as possible, it's not at all clear that we need equal funding for prosecution and defense. More, certainly, but it doesn't have to be penny-for-penny equal. Looking at the defense side is also not enough. We have to pay more attention to suspicious prosecution practices (forced confessions, eyewitness testimony, fingerprints).

Geotpf and others-- I'm also a "libertarian Democrat" and I also believe we need some social programs. But the choice isn't as simple as the government helping the poor or leaving them out in the cold. Cash transfers give the poor more choice & freedom than in-kind transfers like food stamps -- also, any policy that makes it easier to get a job makes fewer people become poor in the first place. Changing or shrinking traditional safety nets can be a smart way to address poverty. The public defender issue is different: as other people have mentioned, the gov't can incarcerate or execute you, so the gov't must provide a defense, and I don't see any reason why private charity would do it better.

|11.29.07 @ 6:20PM|#

This argument is wrong on two points. If he lived 12 kiloyears ago, he would be FAR more likely to be starving even if he had his "wits."

And if he had his "wits" in a 21st century free world econmomy, he wouldn't be starving. In fact, I see insane/drug addled/retarded people on the sidewalks of Detroit every day. None of them are starving. This is America. Even our poor people are fat.

Which is exactly what I said two paragraphs later... you need to read the whole of my post.

|11.29.07 @ 6:25PM|#

But lets say person B lived 12,000 years ago, when humans were still thinly scattered around the earth. In that case he would have had access to all kinds of fruits, berries, wild animals to hunt, land to farm, etc, assuming he had the wit to do it. But in the modern age all that stuff is private property, the land has all been parcelled out, and it's protected by the government. The government HAS actively killed him by protecting private property.

Nice try, foolish-mortal, but in reality the people starving to death tend to be heavily concentrated in the countries where the government doesn't protect private property. Protecting private property saves lives overall, and I would argue that those allegedly compassionate people who would weaken private property "just a little bit" to "help" the poor are causing net deaths of poor people in the aggregate.

You can't prevent bad things from ever happening. All you can do is to minimize the numbers, and the best way is to maximize freedom.

|11.29.07 @ 6:31PM|#

The public defender issue is different: as other people have mentioned, the gov't can incarcerate or execute you, so the gov't must provide a defense, and I don't see any reason why private charity would do it better.

I DO see a reason why private charity would do it better -- pretty much all the government programs I've come into contact with seem to be bungled and inefficient. Let's be real -- who would you trust your life with if the government to execute you -- a public defender drawn at random, or a private practitioner doing it pro bono, also drawn at random?

Any takers for the public defender? Anyone?

*Sound of crickets chirping.*

|11.29.07 @ 6:33PM|#

Should have read ...

if the government was trying to execute you

Big Nanny|11.29.07 @ 6:49PM|#

If it cost about $40,000 a year to incarcerate omeone, then a public defender that kees 2 innocent people out of prision for one year each pays for him/her self.

|11.29.07 @ 7:39PM|#

Nice article, but you might want to change the name of the Illinois governor from "Jim Ryan" to "George Ryan". :)

|11.29.07 @ 7:44PM|#

Big Nanny...no that just frees up space for two guilty people. Of course, if those two guilty people would have, by committing other offenses, done damage equal to the PD's pay or the innocent people, by virtue of their labors while free, can now do an similar amount of good...then the PD pays for themselves.

src|11.29.07 @ 8:00PM|#

prolefeed -- actually, I'm not sure that a public defender would do a worse job than a private practitioner working pro bono. Public defenders work full time defending indigents accused of crimes. They're experts, one might say, in that kind of case. A randomly chosen lawyer doing pro bono work to fulfill his ABA requirement isn't necessarily experienced at defending accused criminals. In general, yes, government programs tend to be inefficient. It's possible that public interest law firms would pick up the slack (something like the way legal aid is provided in civil cases).

src|11.29.07 @ 8:01PM|#

|11.29.07 @ 8:06PM|#

Crime is rampant today*. The government is not securing the rights of the citizens. It is failing them miserably.

The causes include the welfare dole, absurd rules of procedure, leftist judges, apathetic jurors, lenient punishments in the "correctional system", etc. Crime will continue to take the lives and property of innocent people (and force them to restrict their lifestyles to avoid being victims) until we address the causes.

*Anyone who doubts this should try sending an attractive young female, alone, to walk across any number of inner city districts at midnight. Or park a car in many more places.

|11.29.07 @ 8:18PM|#

Hey Bearster...where did you get that soapbox?

|11.29.07 @ 10:09PM|#

Most people don't think this through. If the state/prosecutor cannot prove the case, there's a chance the person could be innocent. If the person is innocent then the guilty party is out there with the public (pershaps to commit another heinous crime). By making the prosecution prove the case, the public defender is actually protecting the public. If the prosecution proves the case where a public defender has defended the party but case is rock solid, then the public can be sure the guilty party is not out there with the rest of us.

|11.29.07 @ 10:52PM|#

I have been a public defender for years, and now, I work in Afghanistan and Nepal training local attorneys who seek to improve their own representation in criminal cases. The interesting thing is that more and more international donors see funding indigent defense as crucial in rebuilding the justice system in post conflict countries. It reduces corruption, improves the quality of court decisions, and ensures innocent people are released from custody. Truly, by defending the least among us, public defenders ensure the possibility of justice for everyone.

|11.30.07 @ 3:04AM|#

Hold on: "But perhaps it's time to reconsider that resistance."

Perhaps?

Too bad you can't get bisphosphonates OTC these days, huh?

M. Simon|11.30.07 @ 4:39AM|#

Yeah, tell the rash on my nether-regions that prostitution is victim-less!

Unregulated markets have poorer quality control and no avenue for recourse.

|11.30.07 @ 8:39AM|#

Which is exactly what I said two paragraphs later... you need to read the whole of my post.

foolish_mortal, you're right. My bad. I do wonder why you brought the argument up in the first place.

Dave Woycechowsky|11.30.07 @ 9:42AM|#

I quoth: achieve parity

Carrick sed: Unachievable . . . even totalitarian, socialistic governments can't achieve parity.

Now I respond: whoops, I butchered the quote. I just meant "achieve parity between prosecution spending and defense spending in criminal trials." Perhaps we can agree with that more limited vision. IIRC, it is sometimes poster Karen who usually doesn't like my parity in crim trial spending proposal.

|11.30.07 @ 11:21AM|#

The mindset of the prosecutorial side of the justice system is illustrated by their resistance to DNA testing when it became cheap and accurate. Some DAs quietly destroyed old evidence because "the law did not require them to keep it". One man was saved by evidence retrieved from a dumpster. Admitting a mistake is worse than executing someone wrongly accused. One small improvement that costs nothing would be forbidding police officers from wearing their uniforms while testifying.

Doug|12.1.07 @ 6:56PM|#

[i]I guess I'm saying I don't understand why Libertarians don't think Gideon v. Wainwright was wrongly decided.[/]

Simple, because the 6th amendment requires that in all criminal cases the accused shall have the assistance of counsel for his or her defense.

[i]Im wondering if there are provisions for Public Defendants for civil litigation?[/i]

Yes there are but they are not required by the Constitution. The 6th Amendment specifically guarantees the right to counsel only in CRIMINAL cases.

|12.7.07 @ 1:07PM|#

Liberty and justice for all.... who can afford it.

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