John Havelock: Justice may be blind, but she can follow the money

John Havelock

The Alaska Bar Association joined the country recently in celebrating the 50th anniversary of the U.S. Supreme Court decision in Gideon v Wainwright, a case that ruled that any person charged with a felony, lacking funds to retain a lawyer, was entitled to free counsel. Later cases in the Supreme Courts of the U.S. and Alaska have expanded on this ruling to include any charge that could result in imprisonment. While Gideon and its progeny marked a considerable advance, we have a long way to go before we have a criminal justice system that fulfills the constitutional promise of "equal rights ... and protection under the law." The celebration of the Gideon anniversary should include recognition of how far we have yet to go and a renewed effort to introduce equality in a system still profoundly unequal.

Lawyers tend to take for granted the proposition separately guaranteed in the Constitution of "the right to assistance of counsel by the accused." The general public knows different. The rich get for their money a defense far superior to the aid given the indigent by a public defender. The failed prosecution of O.J. Simpson for murder is burned in public memory as evidence of the disproportionate benefit of wealth in the criminal courts. The example of this case is regularly reinforced. The occasional rich man caught and appropriately punished in the system is the exception. Recently we were reminded of the influence of wealth by the success of lawyers representing a remote but wealthy member of the Kennedy dynasty in obtaining a writ of habeas corpus. The writ promised a release from custody on a homicide on account of supposed inadequate representation of counsel occurring earlier, representation that had then cost a million dollars.

Public defender offices, created to institutionalize equal justice, are chronically underfunded. "Why," asks the ordinary legislator, accepting the common-sense, public premise that contradicts the constitutional presumption of innocence, "should I be voting funds for the defense of a bunch of criminals?" In contrast to the independent counsel, the public defender must consider first her caseload management, allocating her time over dozens of assigned cases. Which are more "important"? Which "should" be pled out and which tried?

The agency, as required by law, declines to represent those deemed to have sufficient funds to represent themselves. Thus the middle-class defendant, faced with the prospect of an expensive private defense, may well abandon legitimate defenses rather than bankrupt his family. Those unable to make bail, 300 at Goose Creek alone, may find it more expedient to plead guilty rather than spend time awaiting trial that exceeds the likely sentence.

Over the last century, legislators have found increasing sentences the most efficient way of proving that they are tough on crime. The states of the United States and the federal government imprison more defendants for far longer than any other country. Our prison population has facilitated flourishing prison industries, public and private. Imprisonment for drug offenses, usually nonviolent, lead the categories of wasteful public expenditure focused on punishment rather than reformation. With Goose Creek full, correction authorities are already planning another 1,300 capacity, $250 million prison with annual operating costs upward of $20 million.

Last, as any person knows who has tried to access free legal services through Public Aid agencies, terrible and unjust harm, not including jail time, commonly results from disproportionate, wealth-based representation in the civil courts. Volunteer agencies help only a small fraction of the poor, hopelessly outgunned by wealth, including corporate wealth intent on making an example of any challenger.

The remedies for these wrongs are obvious but handicapped by an uninformed public opinion. Amazingly, in Texas of all places, the legislature is now ratcheting down sentences, driven by concern for escalating prison costs. In Alaska, the Department of Corrections budget has soared beyond all others. The road to equal justice is long and winding. Progress has been slow. Legislators could act, but will they in 2014?

Looking back from the 22nd century, our heirs will wonder why we were so slow, so complacent in the face of obvious waste and injustice.

John Havelock is a former Alaska attorney general and founder of the University of Alaska justice program.

John Havelock