Even if you have never been arrested, you know that if you are, you have the right to an attorney. This year is the 50th anniversary of the Gideon case, in which the United States Supreme Court declared that the right to an attorney applies regardless of ability to pay.
In the past 50 years we have experienced times when our politics insisted that we be “tough on crime” – by expanding the reach of criminal prosecutions and the number and severity of prison sentences – to the recent trend that emphasizes being “smart on crime” – by prioritizing our prison punishments for the violent and dangerous felons we are afraid of instead of overusing our resources to imprison those we are mad at.
Our adversary system of criminal justice depends on the accused person having an attorney. We rely on our adversary system to determine whether someone is to be punished. We rely on the adversary system to avoid imprisoning those who are not guilty.
The traditional ethical standard says the prosecutor’s job is not to secure a conviction but to see that justice is done.
But what is justice? Certainly it is not simply what the prosecution says, or what the judge believes after hearing only one side of a case.
Justice in America is done most reliably when there are adequately prepared attorneys on both sides of the case.
In Missouri, providing attorneys to make this constitutional right a reality falls heavily to the state public defender system, whose lawyers represent nearly half of those accused of crimes in trial courts and a large majority of those convicted who are too poor to appeal.
The state public defender commission has a rule authorizing its local offices to refuse new cases when they reach a point of overload. The commission’s rule makes a simple point: The right to an attorney means little or nothing if the attorney does not have the time to investigate and to prepare the accused’s side of the case.
The Supreme Court of Missouri has recognized that the public defenders are overloaded. Local judges and the public defender have been working to help make sure that public defenders are available for the most serious cases.
The temporary closing of public defender offices to new cases hit a sore spot, and the legislature is sure to get involved. Some prosecutors say that the crisis is a made-up attempt to cajole more resources for public defenders. They cite a recent state audit that criticized the public defenders’ use of national standards instead of a Missouri standard. While the public defenders develop Missouri standards, the arithmetic cannot be ignored. The number of cases the public defenders are being asked to take has increased far greater than the resources available.
We can hope that legislators will act reasonably to make sure that public defenders are available for the most serious charges, and that all who face jail or prison will have attorneys with enough time to prepare their side of the case. We will not do justice, nor will we be smart about crime, if our system is one-sided.