Pleading the Sixth: On December 11, 2012, U.S. Attorney General Eric Holder reaffirmed our country’s Sixth Amendment “crisis” and called for a bi-partisan reevaluation “about how we do criminal justice in the United States.”
“Are we putting in jail the appropriate people? Are we putting people in jail for appropriate lengths of time? Are we putting people in jail who might better be served in out-of-jail facilities?” These were just a few of the questions that United States Attorney General Eric Holder challenged the nation to grapple with as he hopes to embark on a new dialogue about how criminal justice is done at the federal, state and local levels of government in this country. His response came during a “question & answer” session with National Public Radio host Nina Totenberg after a speech he gave on voting rights at the John F. Kennedy Presidential Library & Museum on December 11, 2012.
Earlier in the evening, Totenberg asked Holder if he would be stepping down as Attorney General any time soon. Holder replied that he still had some unfinished business left to accomplish before making such a decision. Asked to pick the one thing he most wanted to accomplish before the end of his tenure as Attorney General, Holder responded that he wanted to lead an effort to seriously call into question criminal justice policies that are being carried out simply because that is the way that “we have always done it.”
Certainly, front and center in that discussion will be the long-standing, systemic indigent defense deficiencies that Holder, once again, labeled a “crisis.” Calling it “a pretty shocking thing” that “in the 21st century in the United States of America” there are still far too many juveniles “who will plead guilty in a proceeding without ever haven spoken to a lawyer,” Holder asked for the private bar, legislatures and courts to get educated on the problems and become involved in solving the crisis.
For those first coming to these questions, it is commonplace for the indigent accused in a great number of jurisdictions in this country to sit in jail for several months waiting to speak to an attorney while witness’s memories fade and leads go cold. Even then, an accused individual may be one of several hundred of defendants all vying for the attention of a single attorney all at the same time. And, the attorney oftentimes has financial conflicts that pit his ethical duty to zealously advocate solely in the best interests of a client against his ability to put food on his family’s table. These systemic problems are a public safety issue, as the resulting lack of an adversarial criminal justice system leads to improper convictions that too often leave the real perpetrator of a crime still on the street.
Although he argued that the “legal profession” must take some responsibility for our nation’s indigent defense problems, Holder ultimately put the blame at the feet of “federal, state and local governments” who simply must “find the means to provide adequate representation for all those who are accused of crime.” However, the solution is not to simply increase government spending. There are other ways to ensure the constitutional right to counsel that benefit all of us as taxpayers. Increasing cost-effective supervised diversion and treatment programs for low-level, non-violent offenders or re-classifying the sanctions on petty crimes are just two examples.
The Sixth Amendment Center (6AC) supports all efforts to move our country beyond the “tough on crime” policies that have dominated the past several decades and resulted in a costly reliance on overincarceration. Today, incarceration costs are a large part of most state and local government budgets. Taxpayers can no longer afford to imprison every minor criminal and then sort it all out through a costly appeal process. We need our courts to get it right the first time to decrease the need for endless appeals and costly retrials that force victims to unfairly wait for justice. That cannot occur without effective counsel for the accused. No one is served by a system of too little justice, delivered too late.
For all of these reasons, the 6AC believes a national Commission on the Fair Administration of Justice, supported by the President and the U.S. Congress, and composed of federal, state and local criminal justice stakeholders (police, prosecution, judges, justices and defense attorneys), business leaders, academicians, victim’s advocates and the wrongfully convicted, would bring us as a nation much closer to finally tackling the justice problems that, in Holder’s words, “for too long have bedeviled us.”