Problems with the public defense system A public defender is a lawyer who is appointed to defend individuals who cannot afford to hire a lawyer. Public defenders are appointed by the government and the provision of is stipulated by the law of those countries that have this provision. The law requires that there be a provision for adequate assistance of counsel to anyone accused of a crime who cannot afford their own representation. An individual presumed innocent and has a right to a fair trial in which he can defend himself against the charges leveled against him. With no access to counsel, an innocent person may be convicted of a crime merely because they happen to be poor. Providing competent counsel is the significant way of ensuring the proper operation of the constitution designed to protect the innocent and the less fortunate from unfair and unjust punishment, including death. As Justice Black recognized in Gideon v. Wainwright: Every individual therefore has a right to an attorney as provided by the law, and this attorney is required to represent their client fully. This however in some instances has been made difficult and impossible even in some cases, due to the problems and difficulties that the public defence system is facing. Not all Individuals are Eligible. For instance not everyone qualifies for a public defender. An individual’s eligibility for a public defender is determined by their financial need. Therefore one has to provide financial documents that prove that they are unable to hire a lawyer, for an attorney to be assigned to them. Sometime these procedures are slow and end up taking too long before the individual’s case is assigned to a public defender. These slow procedures then cause the individual to be in jail for more days than necessary. Ineffective Counsel After the financial bit, comes the effectiveness of the appointed counsel. This is especially discouraging as the court appointed attorney sometimes are not as effective. The quality of representation of the client by the attorney is sometimes not the best and this is mostly due to the limited resources provided to the counsel or the work overload that the public defender has that cause them not to be fully prepared to represent the defendant in court. Excess Workload Public defense caseloads frequently far exceed national standards. For example, national standards limit felony cases to 150 a year per attorney. Yet felony caseloads of 500, 600, 800 or more are common. Unmanageable caseloads mean that many defenders simply don’t have time to do the most basic tasks, such as talk to their clients or do investigation. Many individuals get nothing more than a few minutes of their attorney’s time and a hurried guilty plea. The result: miscarriages of justice and convictions of the innocent. This has sometimes led to attorneys being sued for misrepresenting and failing their clients due to work overload. Sometimes public defenders out rightly refuse to represent clients, in such instances a lot of defendants are left with no representation which goes against their constitutional right to an attorney. However the defenders argue that lack of effective counsel due to work overload is well the same as going against or violating this right. Lack of Standards Not all states have clear standards when it comes to representations by public defenders and this obviously brings us back to the quality of representation. As a result of the lack of standards in some counties, the public defense system may be terrible in one county and totally different in another. So that you may find individuals with the same crime may have extremely different verdicts. Lack of Institutional Support Public defenders are burdened by lack of resources, unimaginable workload, limited supervision and very little training, oppressive police, stubborn clients, demanding judges and jurors all of whom they must work with and unhealthy working conditions. Studies of the system indicate that all these factors and tremendous pressure to process cases result to a constant stress on the public defenders which in turn leads to an increasing sense of disillusionment and cynicism about the job. Representation of defendants at the federal level is further complicated by new federal bail and speedy trial requirements, the sentencing guidelines, and mandatory minimum sentences, all of which have increased the pressure on public defenders, thereby causing a reduced ability to provide proper representation.[ committee to review the criminal justice act, report of the committee to review the criminal justice act (1993), reprinted in 52 crim. l. rep. (bna) 2265 (1993) [hereinafter review committee report]. Lack of funding Financing is a big issue for public defenders countrywide. This is such a big issue that some public defender offices are even refusing some cases and letting go of others due to lack of resources and man power. There are some states whose public attorneys are funded by the local county governments. However most counties are short on cash and are not able to fund their public defender offices. This leaves there members of state without a choice if they do not have enough money to afford an attorney. Sometimes it goes as far as charging the defendants for some of the costs of their public defenders. For example in Louisiana the amount charged to individuals who go through the courts is said to pay a sizeable amount the budget for public defenders countrywide. This reliance on court fees stems from the severe underfunding of the public defense system which in turn leads to case overloads. Lack of Trust from the Public Public have a questionable independence as they report to elected officials. Thus one is left to question where their loyalties lie and whether they are acting impartially and being unbiased in their representation just to advance their employers interests. The public defense function should be independent from political influence and subject to judicial supervision only. To promote quality of services and efficiency and also to safeguard independence, a nonpartisan board should oversee defender assigned counsel systems. Ensuring that the judiciary is independent from political pressures is an important means of furthering the independence of the defense system. No counsel at all Many people that are accused of a crime get no lawyer at all. In 2002 one of California’s Counties had more than 12,000 guilty pleas that were entered by individuals who had no lawyers. In Georgia we have some counties that have been sued for failing to provide counsel to defendants, or delaying so long to appoint counsel, which leads to the pretrial wait in jail to be longer than the sentence would have been if convicted. In other places pressure is put on individuals to waive their constitutional right to counsel, this is normally done to juveniles, so as to get a “deal” that is available only if they plead guilty to the crime they have been accused of immediately. Many courts with little to no challenge at all, accept this waivers. The consequences to these are often life-altering, such as loss of employment and sometimes even deportation. Very few jurisdictions comply with the U.S. Supreme Court’s latest ruling (Alabama v. Shelton – 2002) extending the right to counsel to people receiving probation or a suspended sentence. Reports say that Washington DC almost 99 percent of defendants on housing eviction cases is unrepresented by attorneys. This means that these individuals may end up being evicted due to lack of proper representation. Counsel lacks sufficient time and space The defenders sometimes lack sufficient time to interview their clients before the preliminary examination and even trial. This is because the attorneys are informed of their new clients late, and in most cases they are always busy dealing with another case. By the time they get around to seeing the client it’s too late or too much time has passed and they are only left with few minutes to develop strategy and ground rules for both of them. This then leads to misrepresentation of the defendant by the defender, which is violating the defendant’s rights of legal counsel as they have not been fully represented. The space that is given for counsel is also is not confidential. An attorney should have confidential access to his client at all times for exchange of legal and any other information needed; this however is not the case. Lack of experience Sometimes defendants are assigned to counsel that has no experience in their case. Attorneys should never be assigned to case that they do not have experience or proper training to handle; this is overlooked especially when all the attorneys who could handle the case are overwhelmed with work load or are just not available to take up the case. This also leads to poor representation of clients and has dire consequences like harsh penalties and verdicts by the judge. Changing of Attorneys In some instances you may find a defendant having to be represented by two different attorneys in the same case. This is again mostly due to work overload that may lead to dates of case hearings clashing and thus a new attorney has to step in and represent the defendant. This leads to confusion and slow advancement of the cases. It is important that the same attorney represent the client continuously from the beginning of the case through the trial and till sentencing. Burn out and fatigue of attorneys. Most public defenders have a lot of cases to handle that they end up being burned out. The fatigue causes them to make judgment errors when making decisions on the representation of client cases which leads misrepresentation of the clients. This is unethical and totally unfair to the client as they may end up with life altering sentences put against them due to these errors. Families may lose their homes; individuals may end up being deported or families broken due to sentencing of many years in prison, leaving behind families that are bankrupt and have huge legal fees to pay. Many people are let go from prison after they are found to be innocent after they have spent many years in prison. These individuals had attorneys who represented them when they were found guilty in the first place. Some who are without lack, never find justice in the system, they instead die in prison after hoping and praying and later on resign to fate. Racism Some communities that suffer from inadequate provision of legal services to the poor are also subject to peculiar disabilities in the criminal justice system. The most recent wave of criminal justice reforms has included the enactment of laws that appear to be aimed at members of certain races, leading to higher levels of incarceration of African-American males. One of the most disturbing examples of race-based criminal law reform is the enactment of differing penalties for cocaine convictions based solely on the form in which the cocaine is possessed or distributed. In Minnesota v. Russell, five African-American males challenged a state criminal prosecution for possession of crack cocaine. The defendants alleged that African-Americans, who constitute ninety-six percent of those charged with possession of crack cocaine, and white Americans, who constitute nearly eighty percent of those charged with possession of powder cocaine, were treated differently in the imposition of penalties for what is essentially the same crime; possession or distribution of cocaine. Under Minnesota law at the time, the sentence for a conviction of possessing five grams of powder cocaine would likely result in probation. Alternatively, the sentence for a conviction of possessing five grams of crack cocaine would ordinarily result in a penalty of ten years imprisonment. Moreover, the data presented at trial by the defendants indicated that an offender convicted of selling a given amount of crack cocaine would receive the same sentence as would an offender convicted of selling one hundred times that amount of powder cocaine. The Minnesota Supreme Court concluded that the statute failed the rational basis test drawn from the equal protection clause of the state constitution, which in some respects is more stringent than the federal test. The federal courts have also noted the racial disparity in sentencing for cocaine possession and distribution caused by the dubious distinction drawn between crack and powder cocaine in the federal statutes. For example, Judge Louis of the District Court for the District of Columbia held in United States v. Walls that the statutory mandatory minimum sentences for crack cocaine possession in some circumstances constituted cruel and unusual punishment in violation of the Eighth Amendment. 4 Federal District Court Judge Clyde Cahill has also commented on the severe impact the disparity between crack and powder cocaine sentencing has had on the African-American community: While Congress may have had well-intentioned concerns, the Court is equally aware that this one provision, the crack statute, has been directly responsible for incarcerating nearly an entire generation of young black American men for very long periods, usually during the most productive time of their lives. Inasmuch as crack and powder cocaine are really the same drug, it appears likely that race rather than conduct was the determining factor. [United States v. Clary, 846 F. Supp. 768, 770 (E.D. Mo. 1994).] Underpaid attorneys Most public defenders push their clients into plea agreements just to get rid of them because they are being underpaid and have a lot of work. So the faster they can be done with it the better. This is because making a plea is faster than going to trial which will go on for days or even months. Pleas are fast and will enable the defender to handle more cases and therefore earn more money. For instance a court appointed attorney in Genesee County, gets $200 if the defendant pleads guilty before the trial date. In such instances the defender will push their client to plead guilty so that they may get the money. However attorneys who work in good public defender offices are paid a standard salary which is not determined by the number of cases they have handled. They therefore have no financial incentive whatsoever. We can therefore conclude that some of the attorneys do this to clear their work load. Over worked attorneys will push their clients to settle just so that they may get over and with the case and move on to the next as fast as they could. Also during these please, the attorney will push for a better deal if the client decides to retain them as private attorney or pays them more. Staffing shortage Staffing shortage is what has led to the numerous work overloads that in turn cause fatigue and burn out to the available attorneys. Due to the little pay most attorneys have moved to work with private firms where they can get a good amount of money for handling fewer cases. Most attorneys only work as public defenders so as to get experience and later on move to work in huge and established private firms, leaving the inexperienced attorneys to represent the defendants. Conclusion The insufficient funding in the public defender systems nationwide has resulted in inadequate training and resources to the public defense attorneys. Such structural limitations restrict public defenders’ ability to represent their clients effectively, and thus causing them to receive a lot of criticism from the general public as well as their clients. These negative feedbacks cause the public defenders to have psychological stress and develop cynicism towards the job. Moreover, the disproportionate presence of racial minorities among the clients relying on public defender system need to ensure that all defendants receive competent representation; else the criminal justice system will create further disparities in treatment of persons of different races. Many of the problems presently confronting public defender offices can be addressed by creating an independent Defender Services Center modeled after the Washington, D.C., Public Defender Service, to fund and streamline individual offices. Such a center would focus on providing ongoing defense attorney training and on developing and sustaining a positive office culture, two techniques proven effective in enhancing the effectiveness of the representation of the poor. Without such radical and substantial reform, we will continue to face the persistent problem of denying to those most in need the essential services necessary to ensure that the interests of justice are served.
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