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A New Conservative Approach to Justice: Serve the Poor

With jails filling up, right to counsel gains favor.

The Senate Judiciary Committee will hold a first-of-its-kind hearing on Wednesday with a long title and a blunt new message: Conservatives now support significant reforms designed to strengthen the right to counsel for indigent defendants charged with misdemeanors.

These low- or no-income people accused of relatively petty crimes represent a sizeable class of defendants in every jurisdiction in the nation, many of whom can languish in jails for months at taxpayer expense before they are even tried or convicted. Without adequate representation, they are pressured into guilty pleas, told their right to counsel is not free, and in many instances abandoned by harried judges who rubber-stamp convictions in the parade of cases they see each day. Here is Sixth Amendment Center director David Carroll’s new take on the scope of the problem.

Wednesday’s hearing, called by the committee chairman, Sen. Charles Grassley (R-Iowa), and titled “Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors,” confirms in several ways both the nascent conservative embrace of this issue and the urgency with which some lawmakers view the problem. Suddenly, indigent defense is being framed as a matter of economics and freedom from oppressive government overreach, a cause that involves “choice” and “vouchers” and the need to unburden taxpayers.

The three witnesses selected by committee Republicans are expected to testify in favor of reform. The chief justice of the Iowa Supreme Court, Mark Cady, for example, just last month issued a brave and important right-to-counsel ruling. Another Republican witness, Bob Boruchowitz, is a former public defender who produced a seminal report warning about the problem in 2009. These men (and the other witnesses) aren’t coming to Washington to tell the Senate that the status quo is working or acceptable.

It certainly isn’t acceptable to a growing number of conservatives beyond Washington, who have begun to loudly sound the call for reform in misdemeanor cases, pitching it to their own constituents as a fundamental matter of governance that dovetails with the broader conservative pushback against “overcriminalization.” Last fall, for example, Koch Industries partnered with the National Association of Criminal Defense Lawyers to help train public defenders. The money, Charles Koch said at the time, was designed “to make the Sixth Amendment’s guarantee of an individual’s right to counsel a reality for all Americans…”

That’s a theme echoed by Tim Lynch, the Cato Institute’s criminal justice director, who said via email: “If more and more Americans are vulnerable to criminal prosecution, and they are, it makes sense to take steps to help the most vulnerable, the indigent.” Meanwhile, Marc Levin, the policy director for the conservative criminal justice group, Right on Crime, offered the most comprehensive explanation over email for why there is such a strong Republican push to help a constituency, the poor, who are often harmed by Republican policies:

We believe prospective clients, including those who are indigent, should be able to choose their own lawyer. When a judge or someone else acting on behalf of the government selects the attorney, we cannot be confident that there is the fidelity and independence that should characterize the attorney-client relationship. This can be accomplished through “Gideon vouchers” whereby defendants can choose from a list of qualified attorneys maintained by the local bar or another entity, which can ensure caseloads are reasonable.

Attorneys representing those who are indigent should have adequate resources to investigate and litigate the case, but one way to accomplish this is to reduce the total number of cases that result in the provision of taxpayer-funded counsel. Shrinking the number of cases that trigger the provision of counsel can be done in many ways, including reducing the number of misdemeanors that carry the potential of jail time, increasing the use of police diversion, and increasing the use of victim-offender mediation.

Even prosecutors seem to understand that something dramatic has to change in these misdemeanor courts. “It’s the perfect example of overcriminalization,” David LaBahn, president of the Association of Prosecuting Attorneys, told me Tuesday. “Why does everything have to be a crime?” LaBahn says there is much work to be done to reform “all parts of the system,” including additional resources for prosecutors and judges. Who has the worst deal of all in misdemeanor cases? LaBahn says it’s the working poor who make just enough money not to be indigent.

All of which is why the hearing is likely to be one long group hug in favor of reform. Republicans favor it. Democrats favor it. The only open question, it seems, is what mode of reform will emerge and when. In the meantime, if you are looking for one point of emphasis Wednesday it may well be the discussion about what the Justice Department ought to do about the problem. Will the Senate encourage the feds to file lawsuits against failing indigent defense services? That surely would be one direct way of forcing recalcitrant jurisdictions to pay more attention to the problem of misdemeanor justice that everyone seems to agree is bad and getting worse.