Written by Lauren Mendelsohn ’09
If law school taught me anything, it’s that our system of “justice” is, in reality, horribly unjust and broken in many ways. There are many causes of this, from bad laws that are still on the books to the way that judges and justices are selected. But perhaps the largest contributing factor is the perverse incentive system set up to reward successful prosecutions—guilty or not—without providing equal incentives to reward successful defense of the innocent and to uphold justice.
Last week, the head Public Defender for the State of Missouri, Michael Barrett, made headlines when he assigned a case to Missouri’s governor, who happens to be an attorney. To justify this decision, Barrett cited an overwhelming caseload on the Public Defender’s office and invoked a state law allowing cases to be assigned to any member of the state bar during times of extraordinary circumstances. Barrett said the current extraordinary circumstances resulted from the Governor’s failure to adequately fund the Missouri State Public Defender System. Many in the legal field, including myself, applauded this move, and I am curious to see how it pans out—hopefully, Gov. Nixon will get the message and redirect some funds to the PD. But the problem is endemic, and extends far beyond Missouri.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…and to have the assistance of counsel for his defense.” That last part, about the right to counsel, only comes into play when a jail or prison sentence is a possible outcome. And the right to have the government appoint an attorney only exists for individuals who cannot afford a private attorney on their own. Yet while this Amendment has been interpreted to mean that effective assistance of counsel must be provided, there are no safeguards to ensure that today’s Public Defenders can actually provide assistance effectively.
The government employs both prosecutors and public defenders. And while these two roles should be equal, different sides of the same coin, in reality they are not treated as such. Prosecutors enjoy more prestige than Public Defenders, and this is extremely apparent to anyone with a law degree. Public Defenders are almost looked down upon by a significant portion of the legal community, seen as people who defend the crooks, drug dealers, murderers, and other unsavory characters. But the fact of the matter is that while some of the people they defend are guilty, many are innocent, and all are human beings. None of this should reflect poorly upon the Public Defenders’ reputation, though somehow, it all does.
Prosecutors are generally paid a bit more than Public Defenders, and typically handle far fewer cases on average. Some of this has to do with the fact that when a Prosecutor brings a case involving multiple defendants, the same defense attorney may not be able to represent all of the defendants due to conflict of interest rules. Since the defendant is not the Prosecutor’s client, the conflict only arises on the defense side of the equation. And since there sometimes aren’t enough Public Defenders to go around, there are undoubtedly situations where an already overworked PD is forced to represent multiple clients in the same case despite this not really being in anyone’s best interest. Finally, the fact that many judges used to be prosecutors, while few were public defenders, further skews the unbalanced scales of justice.
Furthermore, Prosecutors’ offices are significantly better funded than Public Defenders’ offices across the country. (To learn more about how Public Defenders’ and Prosecutors’ Offices are funded in your state, visit www.gideonat50.org.) In 2007, total spending on prosecutors’ offices exceeded total spending on public defender offices by $3.5 billion. So Public Defenders are overworked, have fewer resources at their disposal than Prosecutors, and suffer from the disadvantage of the prejudice against the criminally accused – despite the old saying “innocent until proven guilty.” We need more Public Defenders, but fewer young lawyers choose to go this route due to its low pay and lack of prestige compared to working for a law firm or even compared to working at the Prosecutors’ office.
A lot of this comes back to the Drug War. The perverse incentives to “convict at all costs” rather than to “seek justice at all costs” would not exist if we were to shift our focus away from the often victimless crime of drug possession and the inevitable social phenomena of drug dealing, and instead focus on solving violent crimes like murder or testing the hundreds of rape kits that sit untested at many police offices. The stigma surrounding drugs and drug users must also change in order for our justice system to live up to its name.