George F. Will / In defense of the defenders

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WASHINGTON -- What is called “the” 1964 Civil Rights Act is justly celebrated for outlawing racial and other discrimination in employment, “public accommodations” and elsewhere. But that year’s second civil rights act, the Criminal Justice Act, which is 50 years old this month, is, some say, largely a failure because of unanticipated changes in the legal and social context. Is it?

In 1961, Clarence Gideon allegedly broke into a Florida pool hall and its vending machines. Gideon, who was indigent, requested a defense attorney, was refused and was convicted. In 1963, a unanimous Supreme Court overturned his conviction, holding that the Constitution’s Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense”) entitles indigent defendants facing serious criminal charges to a government-provided defense attorney.

Congress responded by providing for “representation of defendants ... who are financially unable to obtain an adequate defense.” Last year, David E. Patton, executive director of Federal Defenders of New York, published “Federal Public Defense in an Age of Inquisition” (Yale Law Journal), saying:

“Would an indigent federal defendant prefer to be prosecuted in the system as it existed in 1963 with an ill-equipped, unpaid lawyer (or none at all), or would he prefer today’s system? Although the answer surely depends on many factors, I conclude that in far too many scenarios, the rational defendant would choose 1963.”

Which is dismaying, if true. Is it?

Mr. Patton says that federal criminal law has expanded recklessly and become too punitive. Prosecutors use severity (especially mandatory minimum sentences), high rates of pretrial detention (doubled since 1963) and long detention (the length has quintupled since 1963) to produce excessive plea bargaining. This limits defense lawyers’ abilities to test evidence and challenge allegations before a neutral arbiter — a judge or jury.

The adversarial process, the foundation of our criminal justice system, has become an inquisitorial process that fails to produce fair trials. Or even trials.

“In 1963, nearly 15 percent of all federal defendants went to trial; in 2010, the figure was 2.7 percent.” All this, exacerbated by funding disparities between prosecutors and publicly provided defense lawyers, is one reason why America has the world’s highest incarceration rate. “In most cases,” Mr. Patton says, myriad factors push defendants toward “folding without a fight.”

Well. Where you stand depends on where you sit, and it disparages neither Mr. Patton’s arguments nor the earnestness with which he advances them to note that he sits at the defense table. J. Harvie Wilkinson III sits on a bench — the U.S. Court of Appeals for the 4th Circuit. His essay “In Defense of American Criminal Justice” (Vanderbilt Law Review) rebuts what he considers an unjust “din of diatribe” against the way American criminal justice makes necessarily flawed but necessary trade-offs in the allocation of scarce resources in support of competing values.

The system endeavors to keep America both safe and free by doing as much as is reasonable — insisting on perfection being unreasonable — to minimize both convictions of the innocent and exonerations of the guilty. The bedrock safeguard is the beyond-a-reasonable-doubt standard for conviction, which together with the principle of jury unanimity deters prosecutors from bringing weak cases.

Plea bargaining is surrounded by constitutional protections against unreasonable searches and coercive interrogations, which help justify the presumption of validity about judgments made through trials. The Supreme Court has said that plea bargaining, which conserves judicial resources and involves forthright admissions of guilt, is “highly desirable.” And Judge Wilkinson asks: Who would want to force all criminal defendants to go to trial?

Judge Wilkinson stoutly defends Mr. Patton’s colleagues by rejecting, with evidence from studies, “the ubiquitous ineffective-assistance-of-counsel claim.” Several studies indicate that the talents of the defendants’ lawyers, relative to those of the prosecutors, have “little bearing” on cases’ outcomes. And “at least one study suggests that public defenders are just as competent and effective as prosecutors.”

As for Congress’ alleged excessive expansion of criminal law, Judge Wilkinson says this is partly “a response to the increasing sophistication of criminal activity,” such as cybercrime. Furthermore, the criminal codes are “democratic products” reflecting “deep-seated popular norms and communal judgments of desert and retribution.”

Mr. Patton and too few political leaders such as Sens. Pat Leahy and Rand Paul are leading a reassessment of the criminal justice system 50 years after a landmark advance. Judge Wilkinson warns that flaws demonstrate not that the system is all wrong but that Immanuel Kant was right — no straight thing can be made from the crooked timber of humanity.

George F. Will is a syndicated columnist for The Washington Post (georgewill@washpost.com).



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