Connecticut was the first state in the nation to adopt a Public Defender system, so we have a tradition of leading the way when it comes to the pursuit of justice. It's time we advanced the claims of justice once again. What's needed now is a universal public defender system. In plain English, each and every person accused of a crime in this state should have court-appointed counsel.
I suspect more than a few of you spat out a spray of coffee as you read the preceding paragraph. "Public defenders for all!?" "That's preposterous. Think of the expense!"
Indeed, let's think of the expense.
First, we fully fund each and every prosecution in the State of Connecticut. And we do so without even the insulating effect of a grand jury to protect us from prosecutions that are just plain silly. Not long ago, an associate of mine won a criminal case. It arose from a neighbor dispute. The jury acquitted and then expressed chagrin. Why had the state brought this silly claim to trial?
Here are some reasons why the court system sometimes wastes its time. First, the state constitution gives victims of all sorts of offenses, large and small, a right to be heard. That means prosecutors are often loathe to exercise their discretion to dump a bad case. "Let the jury decide" becomes a means of avoiding responsibility.
But we taxpayers fund each prosecution, no matter how grave or frivolous. The state calls upon the services of trained attorneys, investigators and police officers to develop any case it chooses. Also on tap are legions of state-employed experts, available free of charge to the state. Nobody does a cost-benefit analysis of what we purchase with each prosecution. The cost of doing justice is, apparently, a fixed and irrevocable cost of government.
But the costs of defense are spread unevenly. The indigent get public defenders. But those just above the level of indigency are on their own. They must hire lawyers. And they must also hire investigators and experts of their own. The wealthy can match the state dollar for dollar. But those folks in the middle can't. Private lawyers often lament that they cannot hire the experts they would like because their clients are broke.
Why not create a system that funds both prosecution and defense equally? Retain the adversarial system but house it in a single agency. Call it, despite its Orwellian overtones, the Ministry of Justice.
Under such a regime, the prosecution division would be given a budget for each fiscal year, and it would be expected to give an accounting of what it spent prosecuting each case. The defenders division would be given an equal budget; it too would have to give an accounting of what is spent on each case. At the end of each year, lawmakers could see the consequences of the annual expansion of the penal code. Are we getting social utility for each new addition to the list of prohibited acts?
Let's not forget that under the American rule, the loser always bears his or her own costs. There is something wrong with a criminal justice system that empowers victims, lacks the protection of a grand jury system, and permits prosecutors to pursue each and every claim for which probable cause can be found. Such a system promotes waste, and invites scorn for the law.
The system I propose requires that the work of seeking justice in the criminal law be funded by the state. It would assure a level playing field in all sorts of cases. Just now, a new bevy of so-called experts are being unleashed on defendants in child sex cases: testifying about such gibberish as incremental disclosure, and disclosure of repeated acts in the same location. If the state is going to fund this swill, shouldn't it also finance the defense experts? Isn't there a danger that people of few means will be convicted because they cannot afford to meet the state's case?
Under such a regime anyone would have the right to opt out and hire the high-rolling titans of the bar. But those without means to buy all the bells and whistles would not be whistling in the dark because they have no dough.
A public defender system for all is long overdue. Justice requires it.
Reprinted courtesy of the Connecticut Law Tribune.
