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Gideon, my friend, you are a mere totem

Last year this great country celebrated the 50th anniversary of Gideon v. Wainwright, a Supreme Court case that held that our fine constitution guarantees a right to court appointed counsel if the defendant is deemed to be indigent. Gideon is one of those classic touchstone Supreme Court cases. Movies are made about those cases, police dramas refer to them, and politicians and citizens point to them as proof that we are a more civilized society than the rest.

Look, now: we even give our poor a court appointed lawyer, paid for by the State.

One can sympathize with the folks who fought so long and hard to make the Sixth Amendment’s right to counsel mean something. They are still fighting that battle, whether in Rothgary, or in the adequate provision of funding for criminal defense. Fine liberals, all of them.

While large parts of our criminal justice system are publicly provided, from the enforcement of laws by police officers, to the judges who rule on cases, to the jails that warehouse human beings, to the clerks who keep the paperwork, important parts of our criminal justice system are partially privatized: bail bonding, for instance, and criminal defense.

On the great balance sheet of justice, the debit side of the ledger often overlooks the true cost of criminal justice. More laws protect us against some social evil. But what do they cost in terms of enforcement? Why, the police officers, the prosecutors, the judges, and the jailers, of course.

Rarely is the question asked: what about the defense? (And we never ask: what is the cost to the individual, who is left rotting in jail because he tried to sell some other person some substance the government prohibits. Consult your conscience.)

Indeed, as the economy has contracted, and budgets have shrunk around these many states, everyone has felt some of the pinch. But none more so than the defendant: whose lawyers, if publicly provided, now are being paid less, being now asked to do more than ever before. The lone exception, as far as I can tell, is the Driving While License Revoked charge, which this past year was deprecated to a Class 3 misdemeanor, all the while ignoring the fact that the real consequence of a DWLR is the limitation on a defendant’s right to get a valid license. (Down the toilet bowl we go. and just last year, I was told by a sitting judge, that my client’s decision not to obtain a piece of paper or the unavailability of same to him) was cause to imprison him for 120 days.

Indigent Defense in North Carolina

Nowhere has this shrinking of the budgets been felt more keenly than in North Carolina. This state doesn’t just lead the way in the stinginess with which it treats the unemployed. It leads the way in the stinginess with which it treats the criminal defendant. In short, Indigent Defense Services has taken it on the chin.

And why not? An officer’s say so is usually enough for everyone to assume that the person is guilty. Pay for his lawyer, you ask? That, sir, is a step to far.

A few years ago, the North Carolina General Assembly said that, while it wants all of these hundreds upon hundreds of criminal laws enforced, it doesn’t really want to pay for the defense lawyers to make sure the system is constitutionally sound.

And so the folks on Jones Street created the contract system. Attorneys, after applying for consideration, might be offered a contract or two By my calculations in 2013, the contract system paid a lawyer roughly $170 a case.

At some point, we’re going to say: enough, and no more. This is a travesty. This is an insult. This is not what it means to provide proper criminal defense representation to the indigent.



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