Poor Judgment

New report finds indigent defense unconstitutional in Hamilton County

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The old joke goes like this: "Did they give you a lawyer?" "No, I got a Public Defender." The tired saying becomes a harsh indictment of the Public Defender's Office in Hamilton County and the way our community handles criminal justice after reading the new report Taking Gideon's Pulse: An Assessment of the Right to Counsel in Hamilton County, Ohio. Click here to read PDF.

The National Legal Aid and Defender Association (NLADA), which originally helped set up many of the public defender offices across the country and now evaluates them for effectiveness, believes the defense provided to indigent clients in Hamilton County violates the constitution of the United States — the Sixth Amendment, to be exact.

"One of the critical ... aspects of the (U.S. Supreme) Court's landmark ruling in Gideon v. Wainwright is that the Sixth Amendment's guarantee of counsel was made obligatory upon the States by the Fourteenth Amendment, not upon county or local governments," the report says. "Currently, 30 states meet Gideon's mandate to relieve counties entirely from the burden of paying for the right to counsel at the trial-level. Ohio is in the minority of states that force their counties to shoulder the greater financial obligation to fund the constitutional right to counsel."

The NLADA provides evidence to support what many area residents have known for years: Defense for the poor is disproportionately under-funded.

"Perhaps the clearest illustration of the lack of value placed on public defenders is shown by the manner in which they are compensated," the report says. "Salaries for Hamilton County prosecutors and Hamilton County public defenders are not the same, despite Ohio law requiring that salaries paid to public defenders should be equivalent to salaries paid to similar positions in the justice system."

It's easy to focus on money when reading statements like, "All prosecuting attorneys have their own individual computer with Lexis legal research access (as do almost all non-legal staff); while the misdemeanor public defender staff attorneys must share computers (one computer for two lawyers). Prosecutors all have their own private offices and most have a window; both misdemeanor and felony public defender staff attorneys are in cubicles. ... Prosecutors have secretaries, while public defenders do not."

Then there's the recommended staffing pattern for the Public Defender's Office that would make it possible for the lawyers to manage a reasonable number of cases. The current staffing pattern results in caseloads that equate "to 30 attorney positions handling the work of 74 attorneys. As troublesome as an excessive workload is on an attorney who must handle more than double the number of cases recommended by national workload standards, the true outcome measure of work overload is the tangible effect it has on clients. In Hamilton County the workload means that on average a public defender can spend only one hour and 42 minutes per misdemeanor case (including trials)."

Resources are critical, but what the current allocation of resources says about the priorities of our state and local community is where Janet Moore, staff attorney and clinic administrator for the Ohio Justice and Policy Center, wants to focus.

"I would contend that we need to look at the criminal justice system ... using a logic model saying, 'We're got these resources, tax dollars, to achieve a goal, which is enhanced public safety/community health,' " Moore says. "Are we using our resources to get to our goal? Or are we, in some ways, using our resourses to interfere with that goal? Certainly more funding is going to be required at some point, but I also think we need to take a step back and look at the whole system."

Moore says there are between 30,000 and 45,000 new misdemeanor cases filed every year in Hamilton County, two and a half times more cases per capita than are filed in Franklin County (Columbus).

"That says something about the choices we're making about the way we're using our resources," she says. "It may well be that the taxpayers of Hamilton County choose to use their resources in this way. What I suspect is that there're not really aware of the enormous costs that are born by the taxpayers in funneling this many cases thought the system."

There are alternatives to pumping more money at the current system, Moore says, pointing to a study done by the Washington State Institute for Public Policy, a think tank designed to give the state legislature solid information for making public policy decisions. Faced with a similar situation as that described by the NLADA report, the institute studied intervention and prevention programs and sentencing options to find what best enhanced public safety and lower criminal justice costs. Successful programs were found in all three areas.

"If folks can get together and talk about 'smart on crime' policies that maximize public resources to maximize the public good ... we might be able, as a community, to come to some options besides only throwing more money at the system," Moore says.

Referring to public defense as the "red-haired stepchild in the criminal justice system," Moore says, "it's reports like this (that are) able to quantify truth in a way that helps people see the reality."

One undeniable reality is that state government has shirked its responsibility for providing indigent defense.

"The State of Ohio ... is one of only two states that are actually going against the national trend toward 100 percent state funding by reducing its reimbursement percentage over the past 30 years," the report says. "There is one primary reason why the State of Ohio has yet to effectively and efficiently implement their constitutional mandate to provide a meaningful right to counsel: the constituency most directly impacted by the failure of government to ensure equal access to justice is the one most limited to affect public discourse. (Italics in the original report.) By definition, people of insufficient means have limited resources to gain access to forums that promote public awareness of their concerns. On top of this, people in need of public defender services oftentimes are undereducated, inarticulate, mentally ill, developmentally delayed, under-aged and/or suffering from substance abuse, as well as being accused of, but not yet convicted of, committing a crime. It can be easy for state policy-makers to paint the funding of indigent defense services as 'giving money to criminals.' ... But our Constitutional rights extend to all of our citizens, not merely those of sufficient means.

"Though we understand that policy-makers must balance other important demands on their resources, the Constitution does not allow for justice to be rationed to the poor due to insufficient funds. The issues raised in this report serve to underscore the failure on the part of the State of Ohio to live up to the spirit of the U.S. Supreme Court Gideon decision."

The report recommends a number of changes, beginning with the Hamilton County Board of Commissioners advocating for the state to meet its constitutional demand to fund and administer a proper public defender system. Addition recommendations are geared to the county, which should pay public defenders more and provide them with proper support and equipment.

Two recommendations focus on how public defenders handle juvenile cases, saying they "should recognize juvenile practice as a legal specialization and not as a training assignment" and "should protect delinquent children from waiving their right to legal counsel."

Moore recognizes that the dramatic changes in Hamilton County public defenders called for in the report will take a long time to implement. It's easy to see those who benefit from the current system arguing — as evidenced by the TV ads supporting last fall's passage of a new jail tax — that revamping the area's criminal justice system would take money away from cops and allow bad guys to go free.

"What these evidenced-based programs show is precisely the opposite," Moore says of such "uninformed, knee-jerk responses." "You enhance public safety enormously while cutting the growth in the taxpayer burden in the criminal justice system."

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