Sunday, May 1, 2016

A Mockery of Justice for the Poor - John Pfaff - The New York Times

My colleague John Pfaff is on the money here.  The failure/destruction of the public defender system in much of the country is a product of the politics of resentment - much of it with a racial tinge - that has dominated so much of our politics in the past 50 years (starting with Richard Nixon's 1968 election).
Prosecutors charge more often, using tough on crime as the springboard to elected office, a message to which voters have long responded favorably.
As Judge Jed Rakoff has pointed out prosecutors have tremendous leverage and untrammeled discretion.  In 1980 some 17% of federal defendant went to trial.  Today it is 3%.  Longer sentences are part of the story - but starving public defenders is a rarely acknowledged big part of the mass incarceration which has outlived high crime rates.
New Jersey has been a bright spot. My classmate Dale Jones led the capital defense unit at the statewide Office of the Public Defender.  In some 220 capital trials only 60 were sentenced to death.  In the 25 years from the restoration of the death penalty in New Jersey to its repeal in 2007 - astory that is told in this symposium which I organized - Legislation, Litigation, Reflection, and Repeal: the Legislative Repeal of Captial Punishment in New Jersey.

A Mockery of Justice for the Poor - The New York Times
by John Pfaff (Fordham Law School)

OVER the past year, everyone from the conservative Right on Crime project to the Black Lives Matter movement has pushed criminal justice reform to the forefront of political debates. Yet politicians at every level of government remain almost completely silent about one of the biggest crises facing criminal justice: the utter collapse of indigent defense.
In the landmark caseGideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own. This was no minor decision. Approximately 80 percent of all state criminal defendants in the United States qualify for a government-provided lawyer.
Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only$2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.
Worse, since 1995, real spending on indigent defense hasfallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.
Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor.

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