#1 - I don't think you really do appreciate the situation that public defenders are in. You say you understand they are overworked, but I don't think you're properly representing the gravity of the situation. Let's say that you're right and public defenders spend an average of 1 hour per case in your defense. Let's see how long the prosecution is spending on trying to convict you (source: http://work.chron.com/average-working-hours-prosecuting-attorney-5569.html)
On a per-case basis, the American Prosecutors Research Institute reports that prosecutors spend an average of 100 hours preparing for a homicide case, 8.49 hours preparing for a non-homicide felony, 2.17 hours for misdemeanors and 3.32 hours for juvenile cases.
Does that seem fair? At a minimum, the state are spending 2-3x as much time trying to convict you as it is trying to ensure you have a reasonable defense, and that's not taking into account the issues of disproportionate funding / resources made available to prosecution versus defense. From this article this article, "According to the US Department of Justice, in 2007, about 73% of county public defender offices exceeded the maximum recommended limit of cases (150 felonies or 400 misdemeanors)." "More than 80% of those charged with felonies are indigent. As a result, they are unable to hire an attorney and instead rely on representation by a public defender." It's hard to do your job properly when you are constantly given an insane amount of work that it is simply not possible for you to handle. And I promise you that 7 minutes on average is not an adequate amount of time to determine whether someone's life is going to be permanently screwed up for something they may or may not have done. 7 minutes is barely enough time to take a dump, let alone learn who your client is, what the charges are, what the circumstances of their arrest was, and come up with a plan for how to defend them.
On comparing the time a prosecutor spends versus the public defender, it’s Apples to Oranges. Everyone has heard the phrase “innocent until proven guilty”, and that definitely shows up in the comparative workloads.
The state has to assemble all of the evidence (police reports, vehicle records, any physical evidence, chain of custody reports), anything related to severity of the charge (criminal records for the accused, affirmative defenses, etc), and then make the very discretionary judgment call of whether and how to charge the offense. That’s all before the hearing.
On the defense side, attorneys get essentially all of the evidence from the state, packaged with the severity of the offense information, sentencing guidelines, etc, all in an e-mail “FW: Ur client did this…”. They are basically reviewing the state’s evidence, then deciding how to advise their client.
I would have actually expected the State to take a lot more than twice what the defense does. Certainly on the civil side, the Plaintiff has to go to a ton of work putting the compliant together before Defendants even hear about it.
Also as mentioned, this 7 minutes idea came from one jurisdiction in one study, which was about 10x the magnitude of the reported result of any other jurisdiction. All on a point of evidence taken in the form of personal statements. Can we move past that now?
Given how little time public defenders have to spend on each case, it's not surprising that 95% of all criminal cases end in plea deals, which means that almost every single encounter with a public defender goes something like this: "Hi, <your name here>, I'm your public defender. You need to take this plea deal." And you do, even if you're innocent, because you're afraid of the exorbitant amount of jail time / fines being represented due to overcharging by the prosecution and can't afford to properly defend yourself.
It sucks to make poor decisions? If innocent people are sitting down with their Public Defender, then not opening their mouths on alibi’s and other mitigating evidence because they figure they’re screwed anyway, there are a lot of things wrong in that person’s head that goes beyond their attorney being overworked. Because to be clear, the defense attorney has a duty of professional ethics to evaluate any relevant statement of fact their client does make that does not appear in the State’s evidence record. So I’d hope that in the mind of any innocent person, taking a plea deal on a felony because they figure they’re screwed is not something they’d do without uttering one word.
If you fear this is the common situation and want procedures compelling defendants to offer evidence, then you’re going to be running up against a person’s sixth amendment right to determine the scope of their defense. This happens all the time, and it’s usually the defense dealing with defendants that don’t want to cooperate rather than the other way around.
Also as said, there is no “overcharging”. There is the prosecution charging the offense that the evidence warrants, or the prosecuting charging a lesser offense. If the penalties are so overblown that the prosecution is frequently “undercharging”, and the perception is being developed that charging what the statute authorizes is “overcharging”, then the issue is with the prescribed penalties in the statute being too high or not nuanced enough for all defendants. That’s the legislature’s problem, not prosecutorial browbeating.
I don't give a flying **** if that's somehow still better than how the rest of the world approaches criminal justice. 1, I don't believe that for a second - citation needed, and 2, even if it was somehow true, that still in absolutely no way whatsoever is an excuse for this complete and utter mockery of the 6th amendment.
This is burden shifting. The presumption is that people pleading guilty to crimes are guilty. In this thread, the case is made that too many of them are innocent, based on Public Defenders being overworked and/or negligent. I challenge that premise by highlighting how diligent and effective they are, which necessarily entails a comparison to something. You can’t just move the goal posts onto some prescient incarnation of a criminal justice system that is 100% right all the time, and there are unlimited resources.
#2 - If you have a Masters degree in computer science, flipping burgers at McDonalds is not going to provide you enough income to pay your bills each month without falling further into debt. Sure, you could have your debt payments lowered or deferred, but that interest is still going to accrue and you'll still ultimately be falling behind. In the same vein, lawyers cannot afford to represent people who can't pay them several thousand dollars for their time because they have massive debts to pay off as well as typical living expenses. That doesn't negate the need for lawyers though, so people are put into a situation where they are forced to accept having a criminal record, or put themselves substantially into debt to stay out of jail. The attorneys will still make their fees from those most desperate to avoid prison. It's not terribly surprising that poorer people will often opt for the criminal record, as the alternative may quite possibly put them into debt longer than they'd be in jail for. If the attorneys didn't have such large debts to start with, then they could more easily afford to charge less without impacting their own lives and thus more people would gain access to adequate representation.
To be clear, none of the arguments put forward so far have had anything to do with private defense attorneys, just public defenders. Those are free. And if your argument is that public defenders are so ineffective that private attorneys are the only way for the innocent to avoid prison, then just circle back on all the points made about all the systemic checks present to ensure a public defense represents access to the justice system.
Also once again, no real attorneys in the US are stuck making this economically poisoned decision of whether to practice criminal law or some other field of law. Most attorneys are out of work. For those who have work that doesn’t pay well enough, there is the income-adjusted repayment of student loans (10% of disposable income, forgiveness after 25 years). No one is falling further into debt than that, even if they had alternatives, which they don’t. There are even repayment breaks for government employees that state agencies historically used to recruit, but don’t need to anymore because there is such a surplus of underemployed professionals now in the US.
#3 - Just because you aren't personally familiar with these sorts of ads doesn't mean they don't exist and/or don't impact the justice system. See here. Almost certainly because judges don't want to appear "weak on crime", it was found that the more often political ads aired against them, the more often they ruled against criminal defendants. The link between conviction rates and election ads is undeniable.
This has the cause and effect backwards. What I’m saying is that the public doesn’t care about it enough to go the other way. Not that judges/DA’s don’t, because after all, they’re running for an office that puts people in jail. Who knew, candidates that use ads that they are tough on crime want to be tough on crime. But Like everything with the elections process though, if people really do care about it, start voting that way. Voters get duped as to the facts of the issues all the time.
Perhaps I am not understanding exactly what you mean by "they" and "trivial things"?
"They" being people (including the people that are part of the government machine) in other countries, and "trivial" including such things as misdemeanors.
This reads like you think misdemeanors shouldn't go to court and should be resolved by 1. not charging the crime at all or 2. charging the crime and bypassing the court system w/ the punishment.
I think you mean, "the US should ease up on sentencing for petty crimes" but I can't be for sure.
I can get behind this. Instead of presuming that innocent people are pleading out/getting convicted because their attorneys are terrible, how about we consider the possibility that they committed a crime? A quick list of misdemeanor crimes described in the 2009 study from the NY Times OpEd. The study held these out as things that the DA’s office didn’t even think needed to be punishable by jail.
1) Sleeping in a cardboard box
2) Occupying more than one seat on a Subway
3) Sleeping on a subway
4) Feeding the homeless
5) Underage possession of alcohol
6) Turnstile jumping/fare evasion
7) Fish and game violations
8) Driving with a suspended/revoked license
I do think that there are a lot (A LOT) of problems with the justice system in the US, but access to meaningful representation is not high on my own personal list of woes.
#3 - Who the **** do you think political ads are targetted at? VOTERS! If ads are shown to voters that say "Judge Johnny is weak on crime", that's going to prompt Judge Johnny to rule more harshly against defendants so that he can then run ads defending himself saying "Look at how tough I was on crime! Reelect me!", because he thinks that will help him get more votes. YOU are the one who has it backwards.
#1 - At what point do you think a person's 6th amendment right to an attorney is violated?
When their attorney fails to meet the minimum standards for the profession, as regarding that defendant’s particular case. Each court system in the US establishes Bar Associations that grant an attorney the right to practice law in that court system. Nearly all states have “integrated” bar associations that serve for every court system in the whole state (although the US Constitution doesn’t require it). They have minimum standards for admissions, and procedures for attorney discipline and disbarment. Among these standards are very open-ended ethical obligations that make plain that an attorney needs to have training, resources, and TIME to ethically represent clients.
The Supreme Court standard of review for ineffectiveness of counsel claims uses a lot broader language than that, such as “prevailing professional norms” and an “objective standard of reasonableness”, in order to get a “meaningful adversarial testing”. So, any standards that the Court sees as getting enough credence among attorneys could be used to overturn a conviction. Some attorney associations put out minimum standards for Public Defender workloads. If a defendant finds one that they like and they think their attorney failed at, then they can ask the appeal court to review it.
This is a case by case determination, which is exactly how the US justice system treats it. The twitter-sphere, Netflix documentarians, and cable news outlets are the ones treating it in the form of made-to-order statistics and cherry-picked, aggregated inferences.
Yeah, getting thrown in jail sucks. Talk to your mayor/governor/police commissioner about that. This has absolutely nothing whatsoever to do with public defender workloads for cases at the hearing stage.
Until then, make bail. Unless you’re suggesting that already overworked attorneys and judges make the days and days of preparation for the serious felony cases that they do, only to wait on indigent felony defendants to show up and make their court dates, there is no getting around having to incarcerate people.
And if someone feels they were unlawfully imprisoned and suffered economic loss, they can sue their police department for it.
Once again, I thought we were talking about defendants being coerced by states attorneys to accepting plea deals, due to their attorney being terrible at the hearing stage.
If you are hiring a private attorney to plead out, you probably know what you’re doing by pleading out. Otherwise, we still have to absorb all of the people in the justice system who can’t afford ANY attorney, no matter how cheap they are. So, this migration of defendants from the public defender’s office to the offices of private attorneys never happens, no matter how you hobble the standards of the legal profession to drive down the price of private representation. Public funding is the same, because what do you think determines the salary per time commitment that the public defender offers its attorneys? It’s set at the market rate for legal services of that quality, otherwise those candidates go to private practice, or wherever work is better. So no matter the economics of private representation, the reality is that some people will always have to use the Public Defender’s office because they are broke. And that is where you look at whether minimum standards are being upheld because those defendants can’t just go somewhere else for an attorney.
I mean, which one of us is arguing the 6th amendment here? There is a reason that every single 6th amendment case ever on effectiveness of counsel has had to do with the level of service the state provides at no cost.
<We are literally at a level of wealth inequality not seen since the Great Depression. >
Agreed. But what level of wealth inequality forces you to plead guilty to a crime?
I agree with the facts of this economic situation. I also agree that being wealthy gets you access to a better attorney. But we are talking in this thread about people pleading guilty to crimes. And this is one situation, unlike health insurance, etc, as above, where the system in the US does appoint an attorney for people who are broke. So if this problem does exist, no solution of better wealth distribution solves it. Even if you somehow eliminate all broke people and thereby eliminate the practical need of a public defender’s office, you could still have people pleading guilty to crimes when you’re saying they shouldn’t. What’s being argued are whether minimum standards of representation are being upheld, not the effects of income inequality.
It's like saying tequila hangovers suck because if we were all rich, there wouldn't be anything but Patron. Crappy tequila is still out there, and drinking too much is still a bad decision.
You're acting like it's felony defendants who are urged into taking plea deals, then using statistics about misdemeanors to prove your point. Though the whole thread this has been the case even, but now you come up with these horror stories of false imprisonment going on for years, impossible bail amounts, unqualified counsel, and so on this parade of horribles. But yeah, if you somehow find yourself accused of felony murder, then nonsensically plead out when the deal offered is a life-ruining amount of time in jail, hey, you might have to count on the appeals process to sort out your situation. Your public defender will have plenty of time as you sit in jail to put together an appeal.
Rather than circling back on the same points, let me just set up a scenario for the sake of argument. Let’s say that we have a defendant who stands accused of a felony narcotics charge, and some assortment of combined conspiracy charges, “aggravated” charges, and other types of charges one side is claiming give prosecutors too much leeway in recommending sentences. So for argument’s sake, 25 years worth of charges at trial, 2 years worth on a plea deal. Arguments aside that the prosecution may be letting off a serious criminal with 2 years, or that the defense may be feeling browbeaten into the deal and loathe to defend an innocent person because of workload, let’s just take that that that scenario in itself.
And finally of course, let’s suppose that our defendant is, in fact, innocent. Of the two admittedly terrible alternatives below, what do you think an innocent defendant in the current US justice system is more likely to choose:
1) Pleading to a 2 year sentence that financially ruins them, makes them unemployable, and ruins them for life.
2) Pleading innocent, going to trial, and risking a 25 year sentence that ruins them for life.
Is it crazy to assume that innocent defendants are more likely to plead innocent?
Statistics from one of the articles linked above (http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/ ) shows that between 95% and 97% (depending on jurisdiction) of felony cases are resolved by plea deal. Well, the Innocence Project also mentioned in the same article states that, of the approximately 300 people they proved were wrongly convicted, 10% of them entered a plea of guilty.
So 95% - 97% of all defendants plead guilty, but at least among this subset of wrongly accused people that we know about, 90% of them plead innocent.
Sure, giving people more money helps them get a better lawyer. Investing more time verifying someone’s guilt makes for greater certainty that we are getting it right. And, it’s always horrible when an innocent person is jailed. But the innocent people still seem to me to be pleading innocent an overwhelming amount of the time.
So now, would it be better to focus on making our attorneys better so that people who plead innocent get a better trial? Or hobble the minimum standards of the profession in some misguided attempt to reduce costs of private representation, and make our attorneys worse? Say it was you sitting there totally innocent and looking at prison time. Would you rather that the attorney the state appointed for you be overworked, or stupid?
Put another way, should the role of the justice system be to exonerate the innocent, or make ourselves feel better about people who we're locking up?
So hey, maybe like I’ve been saying, the problem is with what acts we've chosen to criminalize, not the justice system.
It's not always going to be like that, but if this is happening even just 10% of the time it's still a sickening miscarriage of justice brought on by a system that prioritizes convictions over determining guilt and doesn't respect a person's 6th amendment rights. I'd rather 10 guilty men walk free than see 1 innocent man go to jail.
Well, I wouldn't characterize the role of the adversarial trial system either as getting convictions, or as determining guilt. Nothing short of omniscience would be able to determine guilt. The purpose of the 6th amendment has been held out by the Court as the right of someone to put their case through "the crucible of adversarial testing", not give people equal quality of legal defense. So, the role of the system was never to make people sleep better at night that all is right with the world. Rich people are still rich, and it still sucks to be poor.
From the point the police detain a person, every mechanism of the US system is designed to do one thing - exonerate innocent people. The article said, criminologists best estimates of "false guilty" pleas are from 2-8%. These stats still show if they didn't do it, they are telling their lawyer.
Warren is awaiting trial on welfare fraud charges. Charged with stealing roughly $5,000 from the government – an accusation he denies – a judge recently set his bail at $75,000, which he can’t afford. His only options are to plead guilty or stay incarcerated.
In the same region, another criminal defendant is preparing for trial in a very different setting. Tiffany Li, a wealthy real estate heir who is accused of conspiring to murder the father of her children, is able to remain on house arrest after posting $4m in cash and pledging $62m in property for her bail. She has a multimillion-dollar mansion 10 miles south of Warren’s jail.
The parallel cases moving through the San Francisco Bay Area’s courts have shone a harsh light on a system that critics say is fundamentally flawed and unconstitutional, where wealth can buy freedom even for those accused of the most serious offenses while others facing minor charges are jailed indefinitely simply for being poor.
“It hurts. I don’t have the money,” Warren said, dressed in a bright orange uniform on a recent morning while seated inside a cramped jail visiting room in the San Francisco suburb of San Bruno. Guards stood watch nearby.
“I feel like I’m an animal here in a cage – less than an animal,” he said.
While Warren waits in jail, lawmakers and activists in California are pushing to abolish key factors of the state’s bail system so that people accused of crimes would no longer be jailed simply because they are unable to pay the fees. Supporters hope the reforms spread across the US – which has one of the highest incarceration rates in the world – and correct one of the cruelest aspects of the American criminal justice system.
More at the the link.
How the hell can you justify posting bail at 15 times the value of the amoung that might have been stolen.
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How the hell can you justify posting bail at 15 times the value of the amoung that might have been stolen.
Your question is irrelevant to the issue. Bail is not a punitive system. It is meant to ensure that the person accused of the crime shows up for the trial and does not flee the jurisdiction. In Warren's case the guy was released without bail but then failed to make a number of court dates so the judge clearly felt he was a flight risk and the bail was set high enough that he would stay in jail. In Li's case the judge did not consider her an outright flight risk so the bail was set high enough that she would have a massive financial stake at not fleeing the country.