The institution of the Public Defender is being killed off across America, and even in the whirlwind of lies that is the Trump Presidency, it is something we should all be deeply concerned about. There is nothing more important to a free society than the preservation of the Rule of Law, and in the United States, a crucial component of that is the zealous enforcement of the Bill of Rights against the state and federal governments. Public Defenders are probably the most practiced constitutional lawyers in the country. They protect the 4th, 5th, 6th, 8th and 14th Amendment rights of over 80% of the criminal defendants. However, in recent years, chronic underfunding and mass incarceration have compromised Public Defenders’ ability to properly represent their clients. There are just too many clients and too little time to devote to each of them. This means that most Americans being accused of serious crimes are being deprived of their constitutional rights. That is a very dangerous thing, not just for criminal defendants, but for all of us, because when one of us is deprived of his constitutional rights, it erodes those rights for everyone. If we want to preserve the enforcement of the Bill of Rights, we need to restore the institution of the Public Defender.
Freedom ain’t free in modern America
The two big problems causing the Public Defender crisis are excessive prosecution in poor communities, especially for minor drug crimes, and chronic lack of funding by governments that see public defense as a low priority. The reason over 80% of felony defendants use court-appointed counsel (in cities this means Public Defenders, but in rural areas it can mean local lawyers) is that most felony defendants in the United States are poor. The reasons for this are many, and the subject of a different article, but the trend is consistent across the United States. It is therefore not surprising that the most severe crisis is occurring in the most incarcerated State in America, which is also one of the poorest: Louisiana.
One of the reasons that Louisiana incarcerates so many of its citizens is that it has extremely harsh drug laws. For instance, the current marijuana statute, which was loosened up in 2015, provides that someone found in possession of marijuana shall be imprisoned at hard labor for not more than ten years and have to pay a fine of less than ten thousand dollars. This gives hard-line judges a lot of leeway to penalize defendants. When those defendants do not have sufficient time with their lawyers, they can get undeserved and disproportionate sentences for minor crimes. Even more worrisome is that they can be fined amounts they cannot afford, and end up in prison when they fall behind on payments.
The lack of adequate public defense means that the rich and the poor in Louisiana receive radically different treatment. Louisiana’s strict drug laws can be navigable for those who can pay, but for those who can’t, there’s no way out. In rural parishes, there often isn’t a full-time public defender at all. Attorneys take on that task as a part-time gig, and excess cases are often distributed by courts to local attorneys who have never tried a criminal case. This disregard is not accidental. While much of the public defense crisis in Louisiana and elsewhere is due to poor funding structures on both State and municipal levels (and in Louisiana’s case a billion dollar budget shortfall), it is also due to years of funding cuts. These cuts keep happening because most people don’t like Public Defenders, and they are perfectly happy to see that funding cut. They are wrong.
Public Defenders are the heroes of the legal profession
Public Defenders spend every day thanklessly defending your rights and mine, working long hours, often at great personal cost, for very little pay. Why do I say they are defending our rights? Because we all have the same rights as Americans, and they are only real if they are enforced when they are inconvenient and unpopular. Public Defenders use the Constitution and other laws to make sure the police are not, say, pulling random people over on the road for no reason (which would be a violation of the 4th Amendment). Now, maybe the Public Defender is defending a guy who turned out to have a pound of heroin in her car, but if she gets that arrest thrown out, it means that next week, when you get pulled over and improperly searched with a loose Adderall in your car and no prescription bottle, your lawyer can say “Judge, we had a case like this last week and this arrest was illegal, just like that one.” Our legal system operates on precedent, and it is good for all of us to make sure that the people trying most of the cases have the time to sit and focus on each case. They make sure all of our rights are not being thrown out the window.
Lawyers make sure we are a nation of laws
The title of this blog post, which is common lawyer joke, is often taken out of context. The line comes from Shakespeare’s Henry VI, Part II, and it is delivered by a would be revolutionary imagining what he will do as soon as he overthrows the government. He’d kill all the lawyers, because they are the people who make everyone else play by the rules. That basically makes us the know it all tattletales of the community, but it is important to have watchdogs to hold everyone accountable. It is the role of the Public Defender to hold the government accountable on behalf of the people and they should be celebrated for it. More importantly, they should be adequately funded. If you’re interested in making a difference, New Orleans Public Defender’s office has recently had to stop taking new felony cases because their funding shortage is so extreme. I have linked to the donation page below, and if you want to support the residents of the most populous city in the most incarcerated State in the Union, I urge you to donate.