I’ve been watching the debate about national health care with a sinking feeling in my stomach. If it is this hard to build a consensus around assuring that all Americans have access to decent health care, how will we ever summon the conviction necessary to make sure that all Americans have the right to a decent defense when accused of a crime?
Every American accused of a crime should have the right to a court-appointed lawyer and the funds necessary to investigate and present a defense. It’s only fair, after all: A decision to prosecute is always supported by public funds. A state’s attorney brings a case, and his or her office has investigators, state-supported experts and police officers on tap to advance the state’s position. Taxpayers pay for it all.
When a citizen is charged with a crime, however, they must decide whether to retain a lawyer. Indigent folks get a public defender after payment of a nominal application fee. The vast majority of Americans are ineligible for public assistance for their defense. These folks must hustle up fees for an attorney, investigators and experts to meet the state’s case in the open warfare we call trial.
Why is it that a financial penalty is imposed on folks presumed innocent? The state prosecutes for free; a family faces financial ruin mustering a defense because they earn too much to qualify for a public defender. Even if the defendant wins, the state is still off the hook. That is taking the American rule altogether too far. When the state loses a criminal case, it ought to pay the winner’s costs.
On the civil side, the American rule is justified as a means of keeping the courthouse open to all. We don’t want barriers placed in the path of ordinary Americans seeking justice. But the same should not be the case in the criminal courts. We hem the state in with elaborate checks and balances in order to keep its power in check. When it comes to the decision to prosecute, however, the state is limited only by the mere need to show probable cause, a standard so low that few mere mortals can shuffle beneath it in life’s game of limbo.
Of course, the wealthy don’t face these problems. A rich man can afford a lawyer; he can hire an army of investigators and experts equipped with laboratories. It is the vast majority of folks stuck somewhere between indigency and wealth who suffer.
Requiring the state to provide a free defense to each person accused would not limit the choices of those with means. They could still go outside the system to purchase their dream team, just as in Britain a wealthy family can thumb its nose at the national health plan.
Requiring the state to provide a free defense will also serve another purpose: It will increase the cost of prosecuting crime, effectively forcing policy makers to make cost-benefit decisions about what should be prosecuted. As things now stand, the criminal code grows year by year. It rarely decreases in scope. Prosecutors are effectively given blank checks and then told to do justice.
If Connecticut were required to pay the expenses of both sides in a criminal prosecution, lawmakers might actually look for ways to limit the number of crimes. Imagine that! A state dedicated not just in words, but in deeds, to liberty.
Our hybrid system of criminal defense penalizes the lower middle class, those folks just above the level of indigency. These souls must scramble to make bond and hire a lawyer. By the time that is done, many families have nothing left to pay for an investigator or an expert. Their funds are depleted; the state’s coffers, however, rarely run dry. Even in a recession, the state keeps plugging along, grinding souls to a pulp.
Connecticut was the first state to create a public defender system for the indigent. It’s time for the state once again to lead the way by requiring that all persons accused of a crime be provided a defense. Anything less shows tolerance for a truth uttered only furtively and with shame in most courthouses: “The process is the punishment.”
Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany. Most days he blogs at normpattis.blogspot.com.