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...And Justice for All The State of Indigent Defense.

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1 ...And Justice for All The State of Indigent Defense

2 ● Sixth Amendment, guarantees all citizens the right to be represented by a lawyer. ● Fourteenth Amendment, protects all citizens from being deprived of life, liberty, or property without due process of law. ● Gideon v. Wainwright 1963, requires states to provide legal counsel to defendants charged with felonies who cannot afford it. ● Argersinger v. Hamlin 1972, Alabama v. Shelton 2002 extends provision to misdemeanor cases in which imprisonment is imposed and to misdemeanors in which a suspended sentence is imposed. (“Gideon’s Broken Promise” 2004) The Right to Counsel

3 ● 2004 American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants holds extensive hearings to determine the adequacy of indigent defense services. ● Report published concludes that indigent defendants were regularly assigned underfunded, overworked, or inexperienced counsel or not assigned counsel at all. ● Too often innocent defendants utilizing indigent defense services accepted guilty plea bargains or were convicted in trial due to incompetent representation. (“Gideon’s Broken Promise” 2004) Gideon’s Broken Promise

4 ● Inadequate attorney compensation o Inability to recruit qualified career attorneys o Disincentive to vigorously represent ● Lack of access to forensic and investigative experts and support services o Inability to mount adequate defense ● Prosecutor - defender salary and resource disparity o Creates imbalance in adversarial legal system, gives defendants a disadvantage o England spent twice as much on public defense as it did on prosecution while the reverse was true for the U.S. (“Gideon’s Broken Promise” 2004) Critiques and Causes

5 ● Absence of oversight o Lack of accountability o Inability to identify and fix shortcomings ● Incompetent and inexperienced representation o Lack of standard specifying requirements for levels of representation (“Gideon’s Broken Promise” 2004) ● Excessive caseloads o Wilbur v. City of Mt. Vernon 2013, two part time public defenders were handling over 2000 cases, spending half an hour or less on some cases (“A Landmark Case”) Critiques and Causes

6 ● Lack of contact with client or continuity of representation o Causes attorney to have little knowledge of client’s case ● Failure to recognise mentally ill clients o Attorney’s responsibility to identify o Defendants unaware of charges brought against them ● Failure to accommodate non-english speaking clients (“Gideon’s Broken Promise” 2004) Critiques and Causes

7 ● Quality representation o Met with clients in advance o Well prepared in trial o Knowledgeable about own cases as well as other defender’s ● Good motivations o “To me it’s more satisfying to deal with the kinds of problems where people’s liberties are at issue and they’re being wronged by their government.” ● Handles about 30% of indigent defense cases o 70% are assigned to the private counsel consortium Marion County Public Defenders

8 ● Prosecutor-defender pay parity - “We’re not even close” o Most recent legislative session, money was earmarked for achieving parity ● Total state funding remains unequal o 2.4 billion for public defense (2012) -5.8 billion for prosecution (2007) (Herberman & Kyckelhahn, 2014; Perry & Banks, 2011) o Public defense is partially funded by county governments in some states Funding Years of Experience Public DefendersLocal Prosecuting Attorneys Entry-level$39,000$47,000$50,500$40,000$45,700$50,000 5 years50,00060,00062,80052,00060,00061, years65,00075,00078,60069,30077,50076,700 Median Salaries for Attorneys by Type of Organization and Years of Experience , 2008, and 2012 ("New Public Interest and Public Sector Salary Figures from NALP Show Little Growth Since 2004 ")

9 ● Full time public defenders office has advantage of in house investigators and support staff o Three investigators and two paralegals o Private attorneys assigned indigent defense must request money to hire experts or investigators  Small allowance: $25-30 an hour ● Prosecutor’s office has advantage of cooperating with entire police departments for investigative work Resources and Services

10 ● Office of Public Defense Services (OPDS) administers and oversees public defense contracts in Oregon. o Sets standards for minimum attorney qualifications by case type  ex: for capital murder, “has acted as lead counsel or co-counsel in at least five major felony cases tried to a jury, which include at least one murder case that was tried to a jury.” ● Excessive caseloads o Responsibility of director and individual attorneys to limit caseloads to manageable sizes o OPDS has no numerical standard but may intervene if ethical standards are not being self-regulated o Have been attempts to create a standard for 20 years, recommendations are cases a year Oversight and Competency

11 ● Continuity of representation o Assigned counsel will almost always appear at court  Unless the sentence is stipulated and the client agrees  Or if a minor action is all that is needed in which case other attorneys from the office may stand in ● Treatment of mentally ill clients o “80 percent of our clients [are either mentally ill, developmentally disabled, or have impaired mental functioning due to substance abuse}.” o Attorney’s responsibility to identify; very important function of defense. ● Non-english speaking clients o “40 percent of our clients are spanish speaking. And one percent [speak chuukese and another one percent speak russian].” o Full time court spanish interpreter o In house spanish speaking lawyers o Oregon Judicial Department provides certified interpreters in all languages Client Accommodation

12 ● Marion County Public Defenders is able to provide quality representation likely due to improvements made in the areas highlighted and criticized by the ABA ● Oregon is among a minority of states with centralized and overseen state public defense, wherein the state funds 100% of public defense costs, and where spending on public defense is above the national median. (Allison, W. et al.) ● Prospect of prosecutor-defender parity remains difficult o Tough-on-crime culture o Difficult for legislature to justify public defense funding Concluding Thoughts

13 -A landmark case of indigent defense: Defending the right to a fair trial. Retrieved from https://aclu-wa.org/landmark-case- indigent-defense-infographic -Allison, W., Davies, A., & Brown, E. (2011). A Patchwork of Policies: Justice, Due Process, and Public Defense Across American States. Albany Law Review, 74(3), American Bar Association, Standing Committee on Legal Aid and Indigent Defendants. (2004). Gideon's broken promise: America's continued quest for equal justice. Chicago, IL: American Bar Association. -Herberman, E., & Kyckelhahn, T. U.S. Dept. of Justice, Bureau of Justice Statistics. (2014). State government indigent defense expenditures, fy updated (NCJ ). Washington, DC. -New Public Interest and Public Sector Salary Figures from NALP Show Little Growth Since (2012, October 18). Retrieved November 20, Perry, S., & Banks, D. U.S. Dept. of Justice, Bureau of Justice Statistics. (2011). Prosecutors in state courts, statistical tables (NCJ ). Washington, DC: References


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