Sunday, April 9, 2017

"If You Can't Afford a Lawyer"

“If You Can’t Afford a Lawyer”

Hal Pepinsky,, “peacemaking” at

April 9, 2017


                I have long known there are differences between public defenders’ offices which represent clients more thoroughly than many private attorneys at lower-end prices (e.g. Colorado public defenders trained hired and managed at the state level, as I have observed from the time my son-in-law became one, through his present position as a district who has worked to reduce jail populations and levels of sentencing to prison), and those who focus on plea-bargaining (as I observed to be common practice every morning I appeared in and around courts in Boston as a student public defender).

                Just now on NPR I listened to this week’s hour-long radio episode on Reveal Radio, at

New Orleans, Lousiana, Parish, who with his staff has decided to decline all serious felonies so that within their increasingly limited budget (funded by Louisiana by declining traffic fines during flood disasters), they can provide effective counsel to as many lower-level clients as the US Constitution demands…which means that those face more time with higher bail are left in jail without counsel, period.  He welcomes the federal suit by the American Civil Liberties Union challenging the constitutionality of holding federal detainees who have no counsel in federal court.  Meanwhile, the parish jail, under court order to limit the local jail population, have sent detainees to other parishes, including one at a northern corner of the state, whom a public defender cannot manage to visit personally and so does so via the prison phone, whose security is questionable.

                To make things worse, the state requires that those who accept public defenders have to pay $40 up front both to have the public defender appear in court, and another $45 up front that is forfeited if the defendant is found guilty of anything.

                The program moves to follow a public defender and a defendant in a parish where all cases are plea-bargained, the price the defenders pay for giving detainees a speedy trial, followed up with confirmation that this continues to be common practice as I found it to be in 1963-65.

                It is nice to find a public defender who refuses to fail to fully defend his clients.  It is a tribute that he acknowledges the suffering he has caused those he refuses to represent, where the work involved in preparing an adequate defense expands considerably.  The program traces the efforts of one private attorney who accepts a one-dollar fee to obtain the defendant’s alibi for multiple attempted murder charges (photos of him out of town).

                When you consider what it costs taxpayers to detain needlessly and force innocent detainees to bargain for “lower” but still serious prison time, the program and those it gives voice to make a pretty good case that providing adequate assistance of counsel saves taxpayer dollars.

                I seriously recommend the podcast of this program to anyone who wants to understand how seriously those who cannot afford bail are often innocent, probably far, far more so than those on death row who have been exonerated by concerted legal effort.  It makes a stronger case than I’ve encountered in any textbook for the realities of criminal defense for the indigent, and the hope it inspires (in me at least) that even underpaid, seldom noticed public defenders and their constitutional rights allies may have the potential to make a huge part of incarceration in the US go away, including the innocent in far outnumber the murder exonerations which gain so much public attention.  Love and peace, Hal

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