indigent defense need-blind justice by Yarek Waszul

Illustration by Yarek Waszul

Last month, I reported that attorney Larry Hammond and others are seeking to establish an Arizona indigent defense commission. The unfilled need is dire, he said, and growing worse. He asked the State Bar to step up and create a body that will study and propose alternatives. (The Bar is considering it.)

So timely, a New York Times article this Sunday explored two states’ responses to the crushing problem. Here is how Adam Liptak opens his piece on Need-Blind Justice:

“Fifty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.”

“This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money.”

“The complicated problem is that the Gideon decision created attorney–client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.”

“Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.”

“The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.”

“The county calls it ‘client choice.’ Another name: Gideon vouchers.”

Read Liptak’s whole story here.

It was Justice Louis Brandeis who mused that states could serve as laboratories for democracy, where they might try “novel social and economic experiments without risk to the rest of the country.” It seems that Washington and Texas are doing just that, all in service to a problem affecting countless residents.

Two questions arise:

  1. Which approach, if either, offers the greatest likelihood of success?
  2. Where is Arizona’s approach? Will it be one of those two, or an entirely different strategy that a new commission may devise?

In Arizona Attorney Magazine, we’d like to cover the developing conversation. So what do you think?

Larry Hammond speaks at the State Bar Board of Governors meeting, Oct. 25, 2013

Larry Hammond speaks at the State Bar Board of Governors meeting, Oct. 25, 2013

At the most recent meeting of the Board of Governors of the State Bar of Arizona, attorney Larry Hammond rose to shed light on a vital issue: legal representation for those who cannot afford it.

He is the chair of the Indigent Defense Task Force, and on October 25, he asked the board to form a State Indigent Defense Commission. It would be charged with examining that intractable problem and suggesting solutions.

How intractable? Well, as Larry noted, we are in the 50th anniversary of Gideon v. Wainwright and we’re still wrestling with it.

In fact, I wonder how much has changed since the issuance of noteworthy reports like Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice” (2003) and Gideon Undone: The Crisis in Indigent Defense Funding” (1982)?

(All of that, and more, are available on an ABA page dedicated to studies of the indigent defense system in the United States.)

Here is one of the things Larry said to the Governors in his appeal to create a commission:

“It is not just the duty of defense lawyers and victim advocates. We all must believe that competent, adequately funded representation is a part of all of our jobs.”

Do you agree?

I’ve invited Larry to write something for Arizona Attorney Magazine on the topic, both the crisis and the recommended response. I’ll keep you informed.

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