Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Editor’s Note: NACDL Executive Director Norman L. Reimer participated in a panel discussion at the “Advancing Justice Summit” in New Orleans on Nov. 5, 2015. The panel, titled “Protecting Liberty and Gideon’s Legacy,” looked at the state of public defense. The moderator asked Reimer to explain how the issues affecting public defense reflect the larger problems in the criminal justice system. His explanation inspired this month’s “Inside NACDL” column.
The American criminal justice system today is an embarrassment and a disaster. The United States prosecutes too much and incarcerates too long. We police unevenly with disparate impacts in certain communities. That is a fact of life. That is the context in which the public defense system exists.
A Look at the Numbers
The United States leads the world in incarceration. We have 2.1-2.2 million prisoners. That’s more per capita and in actual numbers than any other country on Earth.
We arrest 14 million people each year according to FBI statistics. This does not mean we are a nation of bad or violent people. The number is high because we have made a choice to use the criminal justice system to regulate all manner of personal and social behavior.
We have 70 million people with criminal records in this country, and 50,000 collateral consequences that those people have to face that relegate millions and millions of them to a second class status because of the unbelievable consequences of a criminal conviction. It’s very clear — the statistics do not lie about this — that the impacts if you are poor are far greater, and if you are poor and a minority, they are geometrically greater. This has led to very serious divisions in our country, which right now are bubbling to the surface. But this has been going on for a long while.
Fortunately, some people recognize that we have to deal with mass incarceration and mass prosecution, and we can no longer accept the disparity in the system. People are also beginning to recognize that we have to deal with other problems in the criminal justice system, such as discovery abuse, bad forensic science, and things of that sort.
50 States — Inadequate Support for the Right to Counsel
One thing — an understanding of the right to counsel — still has not risen to the level where it should be. The Sixth Amendment says that all persons shall enjoy the right to counsel in a criminal prosecution. But that is not the reality of what is happening in America. The reality is we do not even have a public defense system in this country. We have 50 states and the states have 3,000 or so counties, and that is how many approaches there are. Very few states have a coherent approach to public defense. The result is that we have a system of justice that would be characterized as an embarrassment if we saw it in other parts of the world. But we tolerate it in the United States every day.
- Some people plead guilty without lawyers.
- Some people are being held on bail with no lawyer.
- Some lawyers represent hundreds of people a year.
- We have “meet and plead” as a common practice, which means people go into court and within a matter of minutes plead guilty to a criminal offense.
This is not what the right to counsel is supposed to be. It’s about the protection of human dignity. The Constitution does not say that the right to counsel is only for the innocent. It says “all persons.” That document recognizes that even a person who has made a mistake needs an effective advocate. It is time to elevate that right.
Many people will stand up for the First Amendment. Perhaps just as many people will stand up for the Second Amendment. A pretty good constituency will defend the Fourth Amendment when it comes to privacy, at least in homes.
But where is the constituency for the right to counsel when the government brings its awesome power to prosecute against an individual? It is simply not there. An increasing number of people now recognize that the criminal justice system is at a tipping point. This awareness creates a great opportunity for us to build support for the right to counsel.
Two Solutions
Let me answer the question: “How does the public defense system relate to the rest of the problems in the criminal justice system?”
The public defense system is both a consequence and a cause of the problems. It’s a consequence of the problems because we are flooding the system with all kinds of stuff that does not belong in a criminal court. As a result the public defense system can’t possibly keep up. But it is also a cause of the problems. If lawyers cannot represent people effectively and early in their cases, the outcomes are worse — and they are life-altering outcomes. The cycle goes on and on. How do we break that cycle?
I suggest just two potential solutions to this problem. First, we must stop using the criminal justice system for all kinds of things that have nothing to do with classic wrongdoing. Prosecuting a guy like John Yates under a federal anti-shredding statute aimed at obstruction of a securities investigation for getting rid of undersized fish is no different than using the criminal justice system for substance abuse, unpaid tickets, or being homeless and sleeping in the streets. We use the criminal justice system for everything. We need to look at those areas in which crimes have been reclassified out of the system and see if that has had any negative impact on public safety. And we need to launch new pilot projects to reclassify and get things out of the system.
The second potential solution is one on which everyone, left and right, north and south, east and west, should agree. It is one fundamental immutable principle: no person should stand in a court in this country when his liberty is at stake or when she may be convicted of a criminal offense without a lawyer — a fully trained and adequately resourced lawyer. That is a basic human right and it is a basic right under the U.S. Constitution. We should make that right a reality.
Beyond that, we have to change the culture of our practice and our approach to the defense function. Let’s embrace all of the wonderful ideas advocates have put forth, such as the idea of representing a person completely and thinking about the impact of that case not only on that individual, but on that individual’s family and community. We need to talk about having lawyers there at the first moment when a person’s liberty is at stake. We need to train lawyers to operate in a different mindset. The federal government needs to do more to fund and support the defense function, which it is starting to do. In the past, we had gazillions going to support law enforcement, but nobody ever thought about the impact on the people who are going to go through the system if we don’t take care of the defense. We are starting to do that, and we are starting to see the Justice Department speak out in cases challenging deficient public defense systems.
Make Reform Happen
I am extremely proud to be associated with defense advocates who have been in this fight for a long time. I am proud to welcome newcomers to this fight. We need you. We need to make reform happen.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
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