Organize the South

Published today at the AJC. Steve is right on again.

A grave injustice to the disadvantaged: Proposals on indigent defense untenable

By Stephen B. Bright
For the Journal-Constitution
Published on: 03/24/08

Imagine that a terrible mistake was made and you were arrested, charged with a crime and thrown in jail. How long would you wait to get a lawyer?

People who can afford lawyers get them right away —- usually within hours of their arrest. They want lawyers to get them out on bond as soon as possible so that they can go home to the love and support of their families and to work before they lose their jobs. They want lawyers to explain the charges and the legal procedures. And they want lawyers to find out, right away, why they are being charged and to start preparing defenses.

People who cannot afford lawyers are not so fortunate. It may be two or three days before they see a lawyer and another day or two before they are released on bond. Jail can be a dangerous, terrifying place for anyone, but it is particularly so for the many people arrested who are mentally ill or vulnerable in other ways. For people who are working and barely making their rent payments, a few extra days in jail may result in the loss of their jobs and may leave them and their families homeless.

Nevertheless, the Georgia legislature is considering proposals that would leave people languishing in jails even longer before seeing lawyers and would completely deny lawyers to some people who cannot afford them.

Georgia law now provides that a person who cannot afford a lawyer must be provided one within three days of arrest. Weekends are included. A person arrested on Friday is entitled to see a public defender or court-appointed lawyer no later than the following Monday. However, the Senate passed an amendment to HB 1245 last week that would make public defenders available within five business days from when a person makes a request for a lawyer.

The Senate's amendment is based on the assumption that people who are arrested will know to ask for a lawyer, but this is unrealistic for those who are mentally ill, addicted, illiterate or limited in other ways. The proposed legislation does not specify how or when requests are to be made or how they will be transmitted.

People could be in jail a week or two before making requests and then wait another week before seeing lawyers. This includes people who may be completely innocent.

It includes people charged with petty offenses such as loitering who may spend more time in jail before seeing a lawyer than they would receive as a sentence for the offenses. (This occurred routinely in Fulton County until a few years ago.)

And it includes people who will lose their jobs and their homes because of the delay in seeing lawyers and obtaining release on bond.

The proposal will produce substantial increases in the populations of jails throughout Georgia. Counties will pay the cost of feeding, housing and providing medical care for people who would have been released on bond within a few days of arrest had lawyers been provided to them promptly upon their arrest.

A Senate-House conference committee will consider the amendment this week in an effort to reconcile the different versions of HB 1245. The version passed by the House does not disturb current law providing a lawyer in three days.

The conference committee should also strike a provision in both versions of HB 1245 that would deny public defenders to many people charged with misdemeanors —- offenses punishable by a year or less in jail. This proposal would change eligibility for public defenders from 125 percent of the federal poverty guidelines to 100 percent or less of the guidelines. One hundred percent of the guidelines is an annual income of $20,650 for a family of four.

The federal poverty guidelines identify people so destitute that they cannot afford basic necessities like food and shelter, but one's ability to subsist is not the ability to afford a lawyer.

A member of a family of four with an annual income of $20,650 —- about $1,700 a month —- is unable to pay from $2,500 to $5,000 to retain a lawyer. (Most lawyers require the full amount at the time of accepting the case.)

This proposal, if adopted, will leave people unrepresented and create havoc in Georgia's courts. Both the state and federal courts have long held that people facing the loss of their liberty must be provided lawyers if they cannot afford them. This is a basic component of fairness in our legal system today. But people making $1,700 a month will be unable to afford lawyers. Yet the legislation would make them ineligible for a public defender.

As long as they are unrepresented, the courts will not be able to try their cases or accept their guilty pleas because they do not have lawyers. And no matter how hard they try, people living on a bare subsistence income will not be able to hire private attorneys. Eventually, if their cases are to proceed, lawyers must be appointed to represent them.

The proposals before the legislature are unjust and unworkable. The existing system of providing lawyers within three days to those who are least able to afford them contributes to a process that is reasonably fair and efficient. The legislature should heed the adage not to fix what is not broken.

> Stephen B. Bright is president of the Southern Center for Human Rights.