Lack of Money Guts Right To an Attorney
HandelontheLaw.com Staff Writer
The lack of money can gut the right to counsel. That is one reason the indigent are provided with lawyers in criminal cases. However, Utah is one instance in which money matters have trumped justice.
Utah and Pennsylvania are the only 2 states in which local counties must bear the financial burden of providing counsel to people who are too poor to hire an attorney to represent them in criminal matters. All other states fund their indigent counsel programs at the state level.
In Utah, the burden on many local counties is just too great. As a result, those counties simply make do by failing to provide counsel for misdemeanors where there is supposedly no threat of jail and contracting with a local attorney on a fixed fee contract to represent however many cases may arise. However, the right to assistance of counsel in criminal matters is guaranteed by the U. S. Constitution’s 6th Amendment, as this YouTube video briefly explains: https://www.youtube.com/watch?v=CDFwSi6ICm4
This arrangement causes a slew of problems. Though some misdemeanor cases may appear to pose only an immediate threat of jail, defendants often face non-lawyer judges who do, in fact, send them to jail with no representation by counsel.
The fixed-fee contract with a local attorney is even more problematic. For example, one attorney was given a fixed-fee contract paying him $600/month to represent indigent defendants in his county. In 2013, he handled 246 cases for indigent defendants, which paid him a cool $30 per case, no matter how he handled each case. Furthermore, that same attorney had to personally pay any expert witness fees. Worse yet, local authorities rely on prosecutors to recommend the local attorney.
You can imagine how that disembowels an indigent defendant’s 6th Amendment rights. Contracted attorneys sometimes plead out cases before even meeting their clients. Expert witnesses are less likely to be hired and even if they are hired, they juggle so many low-fee cases that they are unable to perform thorough jobs. “Difficult” attorneys – ones who zealously represent their clients within the bounds of the law – lose their contracts because prosecutors get to recommend their adversaries; consequently, defense attorneys who want to keep their contracts don’t rock the boat. Finally, non-lawyer judges in “kitchen courts” have to “go with their guts” when deciding misdemeanor cases because there’s no zealous defense attorney standing up for indigent clients.
Recommendations have been made by 2 separate organizations: the Utah Judicial Council (where have you people been?!); and a nonprofit civil rights organization called the Sixth Amendment Center. Their recommendations include: funding by the state; abolishing fixed-fee contracts; limiting defense attorney’s caseloads; creating a state committee to oversee indigent defense; and establishing standard practices for judges and public defenders.
Despite the obvious lack of due process and the simple common sense of these recommendations, a pushback is expected from state legislators who deem these measures too expensive. However, some concepts – such as due process – are supposed to be non-negotiable, so the American Civil Liberties Union of Utah stands ready to sue if these measures are not carried out.
By Kathy Catanzarite
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