An Interesting Way to Do It

 Posted on February 29, 2012 in Uncategorized

When I saw this story:

The fallout from severe layoffs at the Orleans Parish public defender's office came to an early head Friday inside a criminal courtroom. After a hearing in which Chief Public Defender Derwyn Bunton faced a litany of questions about his budget woes, Judge Arthur Hunter said he would farm out dozens of indigent cases to private lawyers.

I thought, "that's not right." Crowded dockets are not the problem of the criminal-defense bar. If the state isn't paying for the indigent to be defended, that's the state's problem.

The best criminal-defense lawyers can make decent livings (though nowhere near what their civil counterparts make) but most criminal-defense lawyers (including, by choice, some of the best) are eking out a living fighting the highest-stake cases. They are taking cases for too little money, either from the working poor or from the indigent-defense system, and spending many uncompensated hours helping people who couldn't possibly afford to pay what the help is worth.

In the Houston area, the median income for criminal-defense lawyers is $73,333; for alternative-dispute-resolution lawyers, the median income it is $162,500. (PDF.) This is like trauma surgeons making less than half as much as dermatologists (which they do not). In New Orleans, the hierarchy is probably similar: criminal-defense lawyers are the redheaded stepchildren of the bar (until one is needed, natch).

These criminal-defense lawyers, already among the lowest-paid in town, shouldn't be responsible for shouldering the burden of the growing police state.

Judge Hunter seems to have felt the same way: instead of farming the cases out to criminal-defense lawyers, he farmed them out to people with political power.

That's probably not an approach that I would have thought of if I were the judge. It's the government that created the problem, and I would probably have put the heat on the government through the prosecutors: we have enough lawyers for n people, so you get to bring cases against n people; any excess, you're going to dismiss; otherwise, I'll let them out on bail until this constitutional crisis is resolved.

We can't afford the criminal-justice system we have now. The prison-industrial commerce is bleeding us dry. The answer to the pressure on indigent defense is not for the state to come up with more money for indigent defense, but for the state to reduce the demand for indigent defense by cutting down on elective prosecutions-prosecutions for victimless crimes and mala prohibida-and reducing punishments for necessary prosecutions.

Something has to give, and it shouldn't be the criminal-defense bar.

I wouldn't have thought of Hunter's solution because I'm not a political animal, because I don't think we should be spending more money on criminal justice, and because, from the point of view of these defendants, it's a crappy solution. They're getting token representation-warm bodies with law licenses-which may be worse than no representation at all. Gamso is more sanguine than I am. These defendants are screwed.

But if you think politically, and you think the state should spend its way out of a constitutional emergency, appointing bigwigs who have never been near the criminal courthouse (and who can afford to put in a few more pro bono hours) to carry part of the load is a damn good idea.