Yes, I said I have nothing intelligent to contribute tonight, but I wanted to point this out. It looks like Mr. D.A. has awoken! In his usual descriptive, analytical style, he takes my post about the state of indigent defense systems and spins it into a larger discussion. He asks
So, in law speak, indigent defense is the defense of very/extremely
poor/needy people. Seems clear enough at first blush. But. . .
- What is â€˜indigent?â€™ That is, how poor is very/extremely poor?
- Once we know that, how do we determine if a given defendant is, in fact, indigent?
- And who decides if a particular defendant is indigent?
- Who represents the indigent defendant? Obviously, an attorney, but which attorney?
does that attorney get compensated? Or do we impose the duty to
represent indigent defendants on the members of the bar as a mandatory
pro bono publico activity. Sort of an "in kind" element of their bar
dues. Abraham Lincoln said an attorneyâ€™s time and advice are his stock
in trade. Is it fair to take that time and advice without compensation?
Is there a Fifth Amendment problem here?
- If we are going to pay attorneys to defend the indigent, how much are we going to pay them?
- And who, exactly, is â€˜weâ€™ in this context?
As a primer to this whole discussion, Mr. DA correctly points to Gideon v. Wainwright, which should be starting point for this conversation. I know some of Mr. DA’s question were rhetorical, but I’ll respond anyway.
Currently, the standard for indigence (atleast here in CT) is $250 per week for a single individual. (That’s $12,000 a year – if you make more than that – you don’t qualify.) The cutoff is usually loosely based on the Federal Poverty Level, which places the income for a single person family at $9,570. I guess one can make the argument that $12,000 is a completely unrealistic number. As explored in my post linked above, there is a large middle class that lives paycheck to paycheck. This middle class makes far more than $10-12,000, yet would be completely unable to retain private counsel. Perhaps the determination should be of take home income retained after making debt payments (credit cards, loans, car payments, etc..) This might provide a more realistic guideline for determining true indigency.
Who decides indigency? I would leave it up to the individual state system to analyze cost of living in that particular state and measure average incomes and then settling on a level that is reasonable. Whether a particular individual is indigent is, ofcourse, determined by investigation undertaken by the PD’s office.
The rest of Mr. DA’s questions are, I think, philosophical questions, so I’ll leave them alone. I will say this, however: As part of our profession, I think it is the responsibility of each attorney to provide representation to people who have no money. The defense of an individual’s liberty is, in my opinion, the greatest service that we can provide to the community at large. Prosecutors get paid by the state/federal government to prosecute those who pose a risk to society. It is only natural, if we are to maintain this system of checks and balances against the government’s power, that the same government provides representation to those who cannot afford it – if for nothing else, then to avoid the appearance of impropriety. There are a large number of attorneys out there, such as myself, who love being public defenders – and in fact, would prefer it to being private attorneys.
Just think about this: criminal defendants are not "those" people. Tomorrow, it could be you. You could, finally, get pulled over for driving home intoxicated on a friday night. You could get arrested for that pot you smoke. You could even get arrested for that nailpolish you shoplifted. Wouldn’t you want an attorney then?