People v. State

While I disagree with how he ties it in to the national health care debate, Norm Pattis’ recent blog post arguing that “Each and every American accused of a crime should have the right to a court-appointed lawyer and the funds necessary to investigate and present a defense” is close to the money. I argued for something similar in this comment thread at Scott H. Greenfield’s Simple Justice blog:

John Kindley wrote:

Here’s an idea: for people who are arguably not indigent but also cannot really afford private counsel, the state facilitates a “guaranteed defendant loan” to pay for such representation, secured by whatever assets the defendant might have. If the defendant is acquitted, the state forgives the loan (the least they can do). That should motivate prosecutorial discretion in the right direction. Come to think of it, such a system might be better for the truly indigent as well.

SHG wrote:

While the idea has some merit, it might also give the government a say in how much private lawyers should charge for their services, how much time they can put into their work and how much overhead they are allowed to carry, since they are fronting the fees to pay for all of the above.  Then there’s the question of where the money would come from, but that’s too nitty gritty at the idea stage.

Of course, my concern was less on those who are “arguably” not indigent, but rather clearly not indigent but still enjoy sucking on the public teet for their free defense lawyer.

John Kindley wrote:

I had in mind as a model student loans guaranteed by the government. As I understand it (though I don’t understand it very well), the amount of these loans doesn’t depend on the expense and quality of the education the student chooses to undertake. The student is still expected to come up with some of the resources on his own, particularly if he or she is pursuing a “cadillac” education.

In the criminal defense context, such a loan could be used to cover completely the fees of a lower-priced lawyer of the defendant’s choice, or merely to defray the costs of a higher-priced lawyer of the defendant’s choice.

Many criminal defense lawyers charge flat fees, so keying the amount of the loan to the gravity of the charge (and with whether representation goes beyond the plea bargain stage) might be a reasonable solution in line with common practice. The amount of the loan could be raised upon petition to the court in unusually complex cases.

Whether the defendant is rich or not, I still like the idea of the government having to pay for a successful defense (i.e. that amount which would be considered the bare minimum for competent representation by some lawyer somewhere). Some criminal defendants want to know if they can sue the government for false imprisonment or malicious prosecution if they are acquitted. The answer of course is generally no, but perhaps at least the government could be required to pay the monetary costs the defendant incurred in defending himself.

As for where the money would come from, it seems some of it could come from the money now being paid for the public defender system. It’s also a question of government spending priorities. For me (and I know for you) the presumption of innocence is an extremely high priority. In principle, innocent defendants whose innocence is vindicated after trial or appeal should not be forced to pay for defending themselves against charges initiated and prosecuted by the government. I’d be more than fine with government reimbursing defendants for its mistakes in criminal prosecutions and the funds for such reimbursement being diverted from all the other wasteful and counterproductive things government now forces taxpayers to pay for.

Later in the same thread, Mark Bennett of Defending People fame seems to concur:

Why should an innocent person — or a presumptively innocent person — have to spend his own wealth to defend himself against the government?

Here’s a wacky socialist utopian idea: if a society wants its government to put people in boxes for the society’s benefit, then that society should be prepared to bear the full cost of the effort, including — if due process is among the society’s values — the cost of due process.

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