The constitutional right to counsel for those who cannot afford their own lawyer means that the government foots the bill for the defendant’s legal counsel. This is true for a great many criminal cases (and the expansion of the right to counsel continues with the United States Supreme Court), but it is especially important when the
The Florida Capital Resource Center is non-profit and nonpartisan. Its goal is to assist attorneys throughout Florida who are representing indigent defendants facing the possibility of capital punishment.
At the Florida Capital Resource Center, resources will be continually compiled by fellow Florida criminal defense attorneys and offered to Florida death penalty defense lawyers as a means to assist and…
According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid. The result of this financial myopia is a deepening financial crisis in Florida and across the country today.
Applying the Constitutional Right to Counsel
Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application. For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression. State courts were a different story, however.
Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts. Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor. Legal Aid? Public Defender? These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).
Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area. Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern. What was at one time a stigma – that lawyers work for a profit — is an attitude that has not stood the test of time.
Expansion of the Right to Counsel into State Courts – first, the felonies
As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant. While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.
It took almost 30 years for the 6th Amendment to be applied to state felonies that did not involve the death penalty. With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state. With Gideon, the High Court had spread the shade of the 6th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue.
Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants
Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).
Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process
Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case. Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself. . Continue Reading The Expansion of Constitutional Right to Counsel by the US Supreme Court – Who Pays?
Right before Halloween, we posted about the new Death Penalty Information Center revelation that focusing solely on a state’s budget bottom line, capital punishment should be outlawed because it just costs too much — and how Billy Joe Johnson’s request to be sentenced to death in California only added fuel to that fire. (Billy Joe…
Today’s news includes the story about the Death Penalty Information Center’s new study of capital punishment costs. Released this week, and looking solely at the bottom line, the DPIC analysis demonstrates that significant monies can be saved by eliminating the death penalty. Since 1976, $2,000,000,000 (that’s two billion dollars) has been spent on capital punishment…
Today, Emory University posted an article detailing the talk that Juan Melendez gave to Emory’s new Criminal Law Society. (Amnesty International sponsored the event.) It is simply a must-read for those interested in the current criminal justice system in the State of Florida, especially those dealing with the imposition of the death penalty in our…
In these economic times, there has been significant media coverage of various states considering the banning of the death penalty — not on moral grounds or arguments about its ineffectiveness in crime prevention, but on the simple argument that it costs too much. That’s right: it is cheaper to keep someone incarcerated for the rest…
At this juncture, we’ve got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender’s office as well as a beleaguered OCCCRC. So, who’s next at bat? The private attorney licensed by the State of Florida.
Let’s consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).
How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.
Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn’t want to represent the poor people of Florida – the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.
One news report has shown that after the Legislature’s action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don’t you know that is one busy lawyer?)
Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial “effective assistance of counsel” under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you’re the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn’t giving that judge much of a choice.
Continue Reading In Depth Look at the Law: The Judges’ Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant’s Right to Effective Assistance of Counsel
One attempt at solving the indigent defense problem was the creation of a state agency made up of five offices to be called Offices of Criminal Conflict and Civil Regional Counsel (“OCCCRC”) by the Florida Legislature in Chapter 2007-62. The idea was that full-time attorneys on a set salary in these new regional offices would theoretically solve at least part of the judicial appointment problem by taking on public defender cases where there was a conflict of interest (which is common in multi-defendant cases) — as well as supervising court-appointed attorneys in child dependency cases and assorted civil actions. Sounded good.
Truth is, the OCCCRC lawyers haven’t even been given a fair shake, they’ve been asked to play the game without a full deck of cards. The OCCCRCs aren’t even getting the basics to do their job.
For example, the Fourth District OCCCRC has complained that it doesn’t even have ordinary supplies and internet access for months at a time. In today’s world, how can an attorney represent a client effectively without internet access? Legal research, communication and filing with the courts, e-mail, etc. are all done over the internet. How any lawyer at the OCCCRC can practice law each day is a miracle in action, and my hat is off to them. No wonder there’s such a high turnover there.
And, adding insult to injury, these OCCCRCs are being sued. That’s right – they have become defendants in their own right. Apparently, several counties throughout Florida have taken the position that OCCCRCs are not “public defender offices” at all under Florida law. Using this legal argument, counties aren’t legally responsible to pay for the expenses of their local OCCCRC (pursuant to Article V, section 14 of the Florida Constitution).
Continue Reading In-Depth Look at the Law: The Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) – An Unacceptable Situation for Everyone Involved
Maryland, like many other states, is reviewing its death penalty laws for purely cost-cutting reasons. However, there’s something to be considered in the current media coverage of the Maryland debates – which are going on right now.
Why are the Maryland arguments so interesting to consider?
This is a particularly interesting jurisdiction to ponder since Maryland has the second-highest murder rate in the nation – due in large part to the homicide rates for the metropolitan area making up Baltimore, Maryland.
In other words, the argument can be made that these homicide rates suggest that there would be more opportunities for imposing the death penalty in Maryland than in other locations where violent crime rate are much lower (say, Montana).
What’s happening this week?
The Maryland lawmakers are hearing testimony and tinkering with language as they consider enacting new Maryland law on capital punishment.
With this background, consider these high profile arguments being made:
Continue Reading Looking at the Current Fight over the Death Penalty in the State of Maryland