I was a little startled to read the remarks of Attorney General Eric Holder at the National Symposium on Indigent Defense last week in Washington. I mean, there's the nation's top prosecutor admitting what criminal justice insiders know: the system is broke and in serious need of repair.
I applaud Holder's honesty. I only wish he were bolder. Admitting that all have sinned is but boilerplate theology. What's necessary is salvation. And that will only come with radical reform.
First, the obvious truths. Nearly a half century after the Supreme Court's decision in Gideon v. Wainwright, we are still a long way from achieving the goal of equal justice for all. Juveniles are routinely denied counsel. Public defenders are often overwhelmed and unable to provide effective counsel to those accused of crimes. We do not devote resources sufficient to fund the defense of the accused. True, all true, but what to do about this, Mr. Holder?
Holder calls for bandaids to staunch the bleeding. He wants an ongoing dialogue. He wants greater public awareness. And he wants greater participation by public defenders in policymaking discussions. All good. But tell me, really, what will this change? Here are some proposals with teeth:
1. Passage of a Law Enforcement Parity Act. Legislation of this sort would call for an estimate of the cost of administering a penal statute, including the cost of policing, experts, prosecution. Lawmakers would then be required to allocate funds for the defense of those accused of the crimes. There should be rough parity for the prosecution and defense of all crimes.
2. Anyone accused of a crime should be eligible for the services of a publicly funded lawyer, investigators and experts. Whether these funds go to a government mandated public defenders office, or to a private Legal Aid office, or to some hybrid entity is immaterial.
3. The harmless error doctrine should be eliminated in appellate review of criminal convictions. This doctrine excuses deficient performance by criminal defense counsel by asserting that despite counsel's failure, the client would have been convicted anyway. Thus the actual outrage of written decisions holding that a lawyer who slept through portions of his client's trial was not a violation of a defendant's right to counsel. If we are going to get serious about funding defense of those accused of crime, we need to be prepared to bear the consequence of failure. It is not enough to wink and say it really doesn't matter.
4. Requiring as a condition of bar licensure that all lawyers register and participate in a public defender system. Purists will say that the criminal law is not for everyone. Yet everyone who passes the bar is minimally proficient in the criminal law. A public defender panel could experience rate the counsel on its list. Mr. White Shoe corporate lawyer, the guy making $1,000 an hour and never soiling his suit with courthouse grime, could be assigned the simplest case. Hard to imagine he could screw up. And if he did, an appellate system which refused to excuse mistake as harmless would ensure that injustice was not done.
5. Create a criminal justice agency that oversees the funding of both the prosecution and defense. Obviously, the two functions would comprise different divisions with different leadership, but requiring that both divisions report to a common head would foster even resource distribution and foster a sense that the justice was the goal of the criminal justice system.
These are radical reforms. But they are necessary reforms. I'd like to see Mr. Holder put his shoulder behind measures level the playing field between the Government and those accused of crime. His comments last week at the Indigent Defense symposium sounded a little bit like the emporer's invitation to the weavers and millers living in the castle's shadow to a banquet: "Come to the feast," he said. "I'll be sure to save you some table scraps."
