Last
July, a homeless man named
Hubert Lindsey was stopped
by police officers in Gulfport,
Miss., for riding his bicycle
without a light. The police
soon discovered that Lindsey
was a wanted man. Gulfport
records showed he owed $4,780
in old fines. So, off to
jail he went.
Legal activists now suing
the city in federal court
say it was pretty obvious
that Lindsey couldn't pay
the fines. According to
their complaint, he lived
in a tent, was unemployed,
and appeared permanently
disabled by an unseeing
eye and a mangled arm. But
without a lawyer to plead
his case, the question of
whether Lindsey was a scofflaw
or just plain poor never
came up. Nor did the question
of whether the fines were
really owed, or if it was
constitutional to jail him
for debts he couldn't pay.
Nobody, the activists say,
even bothered to mention
alternatives like community
service. The judge ordered
Lindsey to "sit out"
the fine in jail. That took
nearly two months.
Lindsey isn't the only
poor American to face a
judge on dubious charges
without adequate legal representation.
Far from it. More than 40
years after the Supreme
Court ruled that competent
counsel was a fundamental
right of all Americans accused
of crimes, the American
Bar Association says thousands
of indigent defendants still
navigate the court system
each year without a lawyer,
or with one who doesn't
have the time, resources,
or interest to provide effective
representation. Whether
they face serious felony
charges or misdemeanors,
the poor often find themselves
alone in a sometimes-Kafkaesque
system where they have little,
if any, voice.
Without advocates, some
poor defendants serve jail
time longer than the law
requires or plead guilty
to crimes they didn't commit
just to get out of jail.
A few, as has been documented,
receive the death penalty
or life in prison because
their court-appointed lawyers
were incompetent, lazy,
or both. Most shocking,
says Norman Lefstein, who
chaired the American Bar
Association's Indigent Defense
Advisory Group, "is
the lack of overall real
success, the lack of progress"
given the overwhelming evidence
that inadequate counsel
often leads to wrongful
conviction. The many cases
we know about "likely
are only the tip of the
iceberg," he says.
"This is an enormous
problem."
Kicking and screaming.
It's also quite a complicated
one. The federal government
has been slow to the game,
both in providing funds
or setting rules. That means
that each state, and often
each county, is left to
its own devices on deciding
how to fund and institute
indigent-defense programs.
Funding is a perpetual problem.
In New York alone, there
are more than 95 different
systems. Sometimes, representation
is determined by whichever
lawyer bills taxpayers the
least, no matter that the
lawyer could have a full
load of other pending cases.
It's not hard to see why
the bottom line has such
pull. Most states have a
hard time coming up with
the necessary dollars for
indigent-defense programs,
and only 27 attempt to provide
full funding. That leaves
already-strapped cities
and counties on the hook
for most of the costs--costs
that must be weighed against
local needs, from new roads
to sewer upgrades and firehouses.
Shortfalls in some places
are acute. In Alabama, pay
cuts have caused lawyers
representing indigent death
penalty clients to flee
the system. In New Mexico,
a lack of funds to hire
lawyers for indigent defendants
caused the court of appeals
there to place an ad for
lawyers willing to work
free.
While several states
have enacted some reforms
in recent years, most
have been dragged kicking
and screaming to the table,
often on the heels of
civil rights lawsuits,
court orders, or striking
examples of injustice
made public. And while
such reforms are welcome,
critics say the jury is
still out on how well
they are implemented.
In Georgia, for instance,
new public defenders are
required to contact their
clients within 72 hours
of their arrest, but there
is no requirement that
they do much else until
a defendant has his day
in court. In one case,
a public defender representing
a severely mentally ill
woman facing a parole
violation had contacted
his client only once after
her arrest and was not
scheduled to see her again
until a bond hearing set
for nearly two months
later. John Cole Vodicka,
director of the Prison
and Jail Project, a watchdog
group active in southern
Georgia, says the public
defender didn't even meet
with the woman personally
on the first occasion;
he sent her a form letter.
Cole Vodicka left several
messages for the lawyer,
saying that he knew the
woman from his church
and that he could help
get in touch with character
witnesses with knowledge
of her troubles and her
mental illness. The lawyer
failed to call him back,
Cole Vodicka says. The
woman's case is pending.
Asked about the case,
Samuel Merritt, the head
of the public defender's
office in that circuit,
said his office should
have fought more aggressively
to schedule the woman's
bond hearing for an earlier
date, but he says the
new system is generally
working very well.
At least Georgia is trying.
In many cities and states,
advocates say, it appears
officials have just ignored
the law. The New York
Civil Liberties Union
has threatened to file
suit against New York
State. While New York
City, which has a well-funded
legal-aid office, is in
many ways a model for
other locales, the rural
counties upstate are another
story. In Schuyler County,
lawyers for the National
Association for the Advancement
of Colored People's legal
defense fund say an investigation
they conducted revealed
a system where indigent
defendants routinely sat
in jail for weeks or months
without seeing a lawyer.
Often they went through
the entire court process,
from arrest, to arraignment,
on through bail hearings
and even through plea
bargains, without ever
consulting an attorney.
One public defender, they
say, deliberately kept
his phone off the hook.
Then there's Gulfport,
the second largest city
in Mississippi, which,
up until Hurricane Katrina
hit, was beating the pavement
looking for those who
owed fines for things
like public profanity--at
$222 a pop. The result
of Gulfport's fine-reclamation
project was that while
it collected modest sums
of money, it also packed
the county jail with hundreds
of people who couldn't
pay. The Southern Center
for Human Rights filed
a federal civil rights
lawsuit against Gulfport
last July. Attorney Sarah
Geraghty says that before
bringing the case against
the city, she witnessed
hundreds of court adjudications
involving Gulfport's poor
in which no defense attorney
was present or even offered.
Many defendants, Geraghty
said, were obviously indigent,
mentally ill, or physically
disabled, like Hubert
Lindsey; some had been
jailed for fines they
had already paid. One
mentally ill woman attempted
suicide by jumping from
an elevated cell in the
county jail after she
was picked up for having
failed to pay several
city fines; the lawsuit
alleges that police then
grabbed her again on the
same charge a few months
later, causing her to
miss the surgery scheduled
to fix the broken bones
in her feet.
The city says it is still
reviewing the lawsuit,
but there is talk of a
settlement. And Geraghty,
who recently sat in on
the court's proceedings
again, says judges are
now advising indigent
defendants of their rights.
But it never should have
taken a lawsuit, adds
Geraghty, noting that
the problem with the city's
actions was clear: "It's
illegal. Period."
Thanks to Dean Auvé,
Washington JAILer, for
sending this to J.A.I.L.