Public defenders, the backbone of our justice system, get the short end of the stick

Even before the Supreme Court’s landmark 1963 decision in Gideon v. Wainwright birthed our modern day public defender system, the Court acknowledged that the right to be represented by a lawyer when facing criminal charges is, “one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.” Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938).

In Gideon, Associate Justice Hugo Black amplified this precept writing, “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

{mosads}Black’s well-considered conclusion, over fifty years old, holds up every bit as strong today because, if you think about it, on a daily basis, it is public defenders leading the charge – in courtrooms, in conference rooms, in correctional facilities, in the streets (at best, with the aid of an overworked investigator), or even in coffee houses and on barstools with prosecutors (we’ll drink with anyone, if that’s what it takes) – fighting tooth and nail against the government’s relentless efforts to erode, even erase, inalienable constitutional rights and freedoms of the poor.

And yet every single year since 1963, it’s the same old story: public defenders around the country, federal and state, are expected to do more with less.

That’s why, in 2013, as casually and confidently as if he were announcing the sky is often blue, Andrew Cohen pronounced in The Atlantic, “the Gideon ruling amounts to another unfunded mandate – the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else.”

Cohen keenly observed, “the reasons are no mystery. Over the intervening half-century, congress and state lawmakers consistently have refused to fund public defenders’ offices adequately.”

Each and every week this perennial and perpetual underfunding of public defenders leads to more and more bizarre and shameful stories of constitutional dysfunction.

Take just last week, in an egregious, mind-boggling example of Gideon’s unrealized mandate in New Mexico, where a judge held the state’s chief public defender in contempt for failing to provide lawyers for indigent defendants.

As reported by The Santa Fe New Mexican, reacting to being held in contempt, public defender Ben Baur said: “We are struggling to provide indigent defendants facing jail time with effective and constitutional representation. We are struggling to do that in Lea County and other places where the caseloads are so high we feel we cannot provide effective assistance in all cases. We could be more effective with more money or fewer cases, but there are only so many hours our attorneys have to represent our clients. At some point, we can no longer do more with less.”

But you know what the most eye-popping, head-splitting, revolting thing about this New Mexico mess is, other than the fact that the constitutional ideal of Gideon is apparently farther away from Lea County than Pluto? 

The Lea County judge fined the cash-strapped public defender office $5,000. Yep, you can read that befuddling sentence as many times as you like, it’ll still be true.

After last month’s presidential election and the votes of three different states favoring the death penalty, I wrote a column counseling, “[i]n a jittery, newly authoritarian land of hatred and hurt, chastened criminal and social justice reformers and human rights advocates can [for inspiration] find solace and sustenance in the words and works of John Steinbeck.”

Pragmatically, however, as we zoom closer to the zero hour of Donald Trump’s administration being handed the keys (and God help us, the codes!), in addition to donating copiously to groups like the ACLU and the NAACP’s Legal Defense Fund, please, I implore you, don’t forget to support your state and federal public defenders.

How? By (1) calling, writing, emailing, and otherwise making sure your elected representatives in congress and in local and state legislatures know, you demand that public defender systems be fully and adequately funded, (2) donating to long-established champions of liberty like the National Association for Public Defense, the National Legal Aid and Defender Association, and Gideon’s Promise.

And, (3) if you are young or old, smart, passionate, and believe all people, rich or poor, black or white (or any hue), guilty or innocent, deserve justice, volunteer. Public defender offices need you.

With little money and no police force at their disposal like prosecutors have, public defender offices desperately need help investigating alleged and actual crimes, and they’ll train you.

Also, they need administrative help, interns, pre-law students, law students, law professors, social workers, private sector attorneys, mental health professionals and expert witnesses to donate (or heavily discount) their time, their energy, their intellectual power, and their passion for justice, in defense of the poor.

The experience of history, law, and common sense demonstrate that the constitutional right to the effective assistance of counsel is, and always will be, only as strong as our collective will as freedom-loving, compassionate and conscientious Americans, to make it.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, Calif. Follow him on Twitter @SteveCooperEsq

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