When America’s Founding Fathers were debating the Constitution, they realized that it didn’t do enough to protect individual rights.
Thus, three years after its adoption, they added the document’s first 10 amendments, collectively known as the Bill of Rights. Amendment No. 6 concentrated on providing criminal defendants with a fair judicial process, including the right to be assisted by an attorney.
In 1963, a unanimous U.S. Supreme Court interpreted the Sixth Amendment to dictate that this right to counsel applies to all felony defendants in state courts, not just those wealthy enough to hire an attorney. Thus, for more than six decades, any defendant too poor to afford an attorney has been guaranteed that one would be provided at the government’s expense.
As a comprehensive story from The Greenwood Commonwealth this past weekend explains, it is unclear how well Mississippi is living up to this constitutional obligation. An analysis of the documents filed by the state’s 23 circuit court districts, where felony criminal trials are held, exposed wide variations in how and when the courts provide indigent defendants with an attorney. Only about a third of the court districts have clear plans that closely follow the guidelines to provide defendants with an attorney soon after their arrest to discuss the charges, request a preliminary hearing and petition for release on bond while awaiting trial.
The variations in the public defender system exist not just from district to district but can also exist from county to county within a court district. For example, in the 4th District, which covers three counties in the Delta, Washington County operates with a full-time public defender’s office, Sunflower County contracts with two private practice attorneys to provide indigent counsel, and Leflore County appoints the public defenders from a list of private practice attorneys willing to do the work.
One can surmise which court districts and which systems are working best, but there’s no way to be certain because no government authority is checking behind to confirm that what’s supposed to happen on paper is what’s actually happening in and outside of the courtrooms.
Efforts to reform the system have been tepid in the Legislature. Even something as modest as establishing statewide standards for public defense has failed to be enacted.
At the root of the problem is Mississippi’s decision long ago to pawn off the cost of public defense on the counties. Some counties, either because they are unsympathetic to accused criminals or because they have a small tax base, try to get by as cheaply as possible. The result can be defendants languishing in jail for months, even years in extreme cases, waiting to find out if they will have to go to trial to face their charges.
While Mississippi operates a fragmented, inadequately funded system of public defense, it does just the opposite on the prosecution side. It maintains a uniform, state-funded system of district attorneys, all of them with support staff focused on securing convictions.
Even if the built-in unfairness between prosecution and defense does not trouble you, the cost of doing it this way should. It slows down the legal process, keeping both the innocent and the guilty longer in local jails, for which counties and municipalities have to pay. And instead of spreading the cost of the defense attorneys among all of the state’s taxpayers, individual counties foot the entire bill for indigent defendants through the trial stage. Since poverty and crime are closely related, the financial burden falls heaviest on counties with a weak tax base.
The solution is obvious. Expand and organize Mississippi’s Office of State Public Defender to cover all manner of felonies and all stages of criminal proceedings, and fund it accordingly. Currently the office handles only capital murder cases and the appeals of indigent defendants.
That reform admittedly would entail a huge transfer of expense from the counties to the state. It’s the fair thing to do, though, as well as the most cost-effective.
