The True Cost of a “Right”

Anyone who has ever watched a crime show has heard police inform a suspect of their Miranda rights. The wording may vary by jurisdiction but one line reads something like this: “You have the right to an attorney. If you cannot afford an attorney one will be provided for you.” After reading this quote you might think that this attorney is free of charge. You would be wrong.

About 95% of all criminal defendants are represented by public defenders or other court appointed counsel. But when the Supreme Court established this as a Constitutional right in 1963 (Gideon vs Wainright), in typical fashion they did not spell out how courts would fund this directive. As a result around 40 states require defendants to pay some or all of the costs for the lawyer provided to them. Some states even require inmates to cover attorney fees before they can be paroled.

It is a wonder that a lawyer would ever consider becoming a public defender. They are almost always overworked and seldom have the resources available to prosecutors. It is not a level playing field. While there are some dedicated, brilliant public defenders and court appointed attorneys, all too often they fall far short of providing an adequate defense for their clients. This is called ineffective assistance of counsel and can form grounds for appeal upon conviction. Very rarely does this occur. Defense lawyers have fallen asleep in court, been proven to be drunk or high on cocaine or heroine, admitted that they were unprepared to bring a case to trial and even found to be unlicensed to work in the jurisdiction where the trial was held, yet none of these indiscretions met the standard required to be labeled “ineffective assistance of counsel”. After all, the Constitution does not say a lawyer has to be awake, sober, or qualified to practice. The Supreme Court has ruled a defendant will be provided a lawyer and just about any warm body will do.