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In “Gideon’s Legacy: Not so dire after all,” [NLJ, March 31] Joshua Marquis wrote that the “promise of Gideon has not gone unfulfilled.” There is overwhelming evidence to the contrary. Every day, accused persons plead guilty and are sentenced without a lawyer. In one Georgia county, newly arrested defendants are told in court to choose between two lines: one to talk to the prosecutor and resolve their cases that day, and another to request a lawyer. Last year, 12,000 unrepresented people in one California county pleaded guilty. A person earning $3,000 in Wisconsin does not qualify for a public defender. Appointed lawyers are often overburdened and underpaid, rendering meaningful representation impossible. Part-time public defenders in Lake Charles, La., have 600 felony cases and on average do not meet clients until nine months after their arrest. An attorney appointed to represent a juvenile in Virginia will get paid no more than $112, even if the case goes to trial. Marquis’ assertion that Oregon provides more resources to the defense than the prosecution lacks support, especially given recent budget cuts there that have meant that no lawyers are appointed in most nonviolent cases. Moreover, prosecutors can access free investigative and scientific services from law enforcement agencies and state crime labs, which defense lawyers must purchase. Nationwide, the defense is far outspent. For example, in Pennsylvania, one district attorney makes $116,000 while the opposing public defender makes $57,000. This imbalance has precipitated lawsuits to ensure the promise of Gideon. Yet even when settlements result in budget increases, as in Connecticut, defense funding remains below the prosecution’s. We agree that “public defenders and prosecutors have to be adequately funded,” as Marquis wrote. But most indigent defendants don’t receive the representation envisioned in Gideon. Appointed lawyers often lack the time, tools and training to meet this basic right. Every national and state organization that has studied this issue has concluded that in capital and noncapital cases alike, the fundamental principle of American justice established in Gideon-the right to counsel-remains unfulfilled. States should provide prompt appointment of qualified counsel-no exceptions. Lawrence S. Goldman New York President, National Association of Criminal Defense Lawyers This letter was also signed by Kirsten D. Levingston (Brennan Center for Justice, New York University School of Law); Robin Dahlberg and Vincent Warren (National Legal Department of the American Civil Liberties Union); Virginia Sloan (Constitution Project); Miriam Gohara (NAACP Legal Defense & Educational Fund Inc.); Peter Loge (Campaign for Criminal Justice Reform, The Justice Project); Lawrence C. Marshall (Northwestern University Center on Wrongful Convictions); Kathleen A. Behan (Arnold & Porter); Barry Scheck and Peter Neufeld (Innocence Project, Yeshiva University Benjamin N. Cardozo School of Law); and Samuel Dash (Georgetown University Law Center). Thousands of people just like Clarence Gideon are being sent away from Oregon courts without a lawyer to defend them because the state can’t afford to appoint counsel. States have struggled in different ways to reduce budgets in the current weak economy. In Oregon, where Joshua Marquis prosecutes, the account that pays for indigent defense took a disproportionate hit in the Legislature, ending up defunded by $21 million. Without enough money to pay for the work of appointed counsel, the courts are now refusing to appoint counsel on all nonviolent misdemeanor and low-level felonies. True, Oregon defense counsel generally has had good access to resources necessary for an effective defense in capital cases. We should be proud of our state’s commitment to fairness in the most serious cases. But it is misleading to claim that defense counsel is funded better than the prosecution. Trial-level indigent defense in Oregon is provided entirely through state contracts with private businesses, including nonprofit public defender offices that do only indigent defense. Our funding must cover everything from the leases for our buildings to the toilet paper in our offices. More importantly, every investigator, forensic witness and expert test or evaluation is paid from our funding. Prosecutors don’t pay for most of the equivalent assistance they receive from city, county, state and federal agencies. Portland, Ore. President, Oregon Criminal Defense Lawyers Association It is disheartening to see Gideon‘s 40th anniversary used to downplay the enormous problems plaguing indigent defense today. The fact is, in many states indigent defendants are effectively denied counsel, a result of insufficient funding, overwhelming caseloads and lack of requisite experience by lawyers. Public defender offices try to do their jobs well. The issue, however, is not that dedicated professionals, such as those in Cook County, Ill., whom Joshua Marquis mentioned, bear up under harsh circumstances. Rather, it is that these circumstances must be addressed so that public defenders everywhere can do their jobs effectively. Cook County should be the norm, not noteworthy. Lawyer volunteers assist greatly with indigent defense. Their generosity keeps unthinkable shortfalls at bay. But the constitutional obligation to provide competent counsel for indigents rests with the states, not the private bar. If the Sixth Amendment means what it says, the serious ills affecting indigent defense must be addressed, not denied, to achieve Gideon‘s promise of equal justice. President, American Bar Association Several commentators on this page have loudly objected to the claim that America’s justice system has made huge strides since the 1963 decision in Gideon. But spending for indigent defense has increased 500% in the last 20 years (from $600 million in 1983 to $3 billion now). While the average per-capita spending is about $10 for indigent defense, Oregon spends almost two-and-a-half times that amount ($75 million for about 3.2 million citizens). As prosecutors, it is very much in our interest to have adequate counsel in all cases. In Oregon, where the courts say they’ve run out money to appoint lawyers, the prosecutors from the state’s most populous jurisdictions brought suit to guarantee every criminal defendant the right to appointed counsel. In three Oregon counties, the elected district attorneys have filed writs of mandamus in state court and a federal Sec. 1983 action to ensure court-appointed lawyers. Prosecutors have put their political careers on the line for the principle. Oregon’s fiscal crisis has indeed crippled the justice system but not, as implied, by leaving latter-day Gideons in jail while they await counsel. All nonviolent offenders in Oregon are getting a get-out-of-jail-free card. Oregon’s prosecutors have consistently supported necessary funding for indigent defense even as their own budgets have been cut. Isolated anecdotes have been used to draw a distorted picture of a pattern of threadbare public defenders facing luxuriously funded district attorneys. In Oregon it is common for indigent capital defendants to spend tens of thousands of dollars on expert witnesses when the prosecutor has half that amount for his entire year’s budget for such expenses. In New Hampshire’s largest jurisdiction, public defenders’ caseloads are capped at 55 while their counterparts in the prosecutor’s office each handle hundreds of cases. In Wisconsin, 25 elected district attorneys just offered to cut their own wages because the state is going to force layoffs of state-paid assistant prosecutors. Their public defender counterparts are not facing immediate layoffs, but their funding is threatened as well. Who has come forward to advocate for adequate funding but Milwaukee County District Attorney Michael McCann. Neither office should have to make these sorts of sacrifices on top of the overall lifetime pay differential that inevitably exists for those who practice law in public service. The reality across this nation is that the most experienced, skilled and highest-paid chief prosecutor in America will never be compensated at a rate anything close to the income of many criminal defense attorneys. Of course public defenders should be paid more; in Oregon, the president of the Oregon District Attorneys Association testified in favor of the indigent defense budget. Our defense colleagues are adamant in demanding that all defendants get lawyers. We agree that they should have that right, but there are many circumstances in which low-level misdemeanor defendants waive their rights as part of early disposition programs. These defendants are not coerced into giving up their rights, but many choose to accept an offer to resolve their case with a very lenient sentence, avoiding multiple court appearances and the possibility of much more onerous consequences. These programs save taxpayers enormous amounts of money, the defendants don’t end up owing the state for court-appointed counsel, and they free up court resources for more serious crimes. To imply that these people are being marched off to prison without counsel draws a very distorted picture. Rather than disparaging the very real needs for funding of both public defenders and prosecutors, we would hope that all lawyers and the many groups represented in these letters would join in our efforts to secure student-loan forgiveness for lawyers who enter public service as both prosecutors and public defenders. We need to make a systemic effort to offer incentives for good lawyers to enter and remain in public service, while dealing with the reality of law graduates’ crushing student-loan debt. Some would have readers believe that justice is served only when the verdict is “not guilty.” But in truth, the rule of law is upheld when both sides are well-represented, and that is the goal to which we all aspire. This letter was also signed by the following district attorneys: Robert F. Horan Jr. (Fairfax, Va.); Paul Logli (Rockford, Ill.); Ed Caleb (Klamath Falls, Ore.); Michael T. Dugan (Bend, Ore.); Dan Norris (Vale, Ore.); James Reams (Kingston, N.H.); Stephen Atchison (St. Helens, Ore.); Ray Larson, (Lexington, Ky.); Mark DeCaria (Ogden, Utah); Peter Carlisle (Honolulu); Barbara LaWall (Tucson, Ariz.); David Barber (Birmingham, Ala.); and Art Curtis (Vancouver, Wash.).

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