More than 45 years ago, in one of its best known and most important decisions—Gideon v. Wainwright, the US Supreme Court wrote that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” The Court observed further that “lawyers in criminal courts are necessities, not luxuries” and that the government has a constitutional obligation to provide lawyers for people charged with felonies who cannot afford to hire their own.
On April 14, 2009, for the first time since the Gideon decision, an independent diverse group, whose members include the relevant constituencies of the justice system, has examined the state of defense services for the poor and has found it sorely wanting, with grave problems nationwide. The National Right to Counsel Committee was established to address the full range of difficulties in indigent defense from a national perspective. Among its members is a person who was convicted of a crime that he did not commit, sent to prison and later exonerated due to DNA evidence. The committee’s report, entitled “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel” found that throughout the country, indigent defense systems are struggling. The authors note, with alarm, that “In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever.”
The public defender movement was launched in the early 1890’s by a California lawyer —Clara Shortridge Foltz, the first female attorney in the state. Ms. Foltz then worked to implement the public defender concept through legislation in 30 states, long before the Supreme Court’s ruling in Gideon. She understood that the state must be responsible for a just presentation of both sides of a criminal case. For Foltz, in our adversary system of justice, fairness is served only if both sides are represented by lawyers who are evenly matched in training, experience, and resources. In calling for a public defender on par with the public prosecutor, she said, “Let the criminal courts be reorganized upon a basis of exact, equal and free justice: let our country be broad and generous enough to make the law a shield as well as a sword.”
The irony is that more than 100 years after a Californian introduced the concept of the delivery of indigent defense services, California mayors and supervisors throughout the state have introduced unprecedented budget cuts which, if implemented, will decimate our public defenders’ offices. The San Francisco Public Defenders’ Office is no exception. Led with equal parts wisdom and courage by Jeff Adachi, that office employs 93 lawyers and 70 support staff who represent 24,000 indigent defendants each year. Their annual budget of $23.2 million, is just 3% of San Francisco’s $786 million allocation to the Office of Public Protection and is less than what the San Francisco Police Department earns annually in overtime pay. It is the Office of the District Attorney ($32.6 million), the Probation Department ($43.9 million), and the Police/Sheriff’s Departments ($469.5 million) that receive the lion’s share of this money.
Mayor Gavin Newsome has proposed a 25% budget cut for the Public Defenders’office. If the Mayor has his way, Mr. Adachi will be forced to fire one-third of his staff, thus leaving 6,000 indigent defendants without representation. While the Mayor has proposed a similar cut for the District Attorney’s office, the impact will be far less severe. The District Attorney’s office employs 55 investigators, the Public Defender employs 20. Additionally, the District Attorney’s office is far better resourced than its counterpart because it receives substantial funds from state and federal grants, funding which for the Public Defenders’ Office does not qualify.
The paucity of resources allotted to public defenders has resulted in the creation of Innocence Projects, such as the one at Santa Clara University Law School, which have succeeded in exonerating scores of wrongly convicted defendants. It is inexcusable that the constitutionally-required protection mandated by Gideon, be left to the kindness of strangers.
On Wednesday, May 6, 2009, a one-day Justice Summit, free to the public, will be convened in San Francisco to educate the public, policymakers, and legislators about the critical role that public defenders play in our criminal justice system. We will be there to voice our opposition to the proposed budget cuts and to further the campaign to support the constitutional right to public defense. We hope that you will join us. “In return,” as Clara Foltz promised, we will all receive “the blessings which flow from constitutional obligations conscientiously kept and government duties sacredly performed.”