CONSTITUTIONAL RIGHT: EQUAL ACCESS TO JUSTICE

There is a critical need for the media to educate the public about the current condition of the criminal justice system, and about how poorly Nevada's state and local governments deliver on its constitutional obligation to provide lawyers to the poor. The constituency most directly affected by government's failure to ensure equal access to justice is the one least able to influence public discourse.

By definition, poor people have limited resources needed to gain access to forums that promote public awareness of their concerns. Moreover, people needing public defender services often are undereducated, inarticulate, mentally ill, developmentally delayed, under-aged, and/or suffering from substance abuse. Given how hard it is for them to respond to lawmakers, it is easier for those in power to characterize funding of indigent defense services as "giving money to criminals" and to oppose such expenditures.

Under these circumstances, the Review-Journal deserves praise for its series of articles detailing the present Nevada indigent defense crisis. However, the paper was wrong to reject caseload limitations as a necessary part of any attempt to fix an obviously badly broken system ("Indigent defense," July 27 editorial). Since the vast majority of criminal cases require publicly financed lawyers, the failure to adequately fund and effectively administer indigent defense results in too few lawyers handling too many cases in almost every criminal court action. Therefore, their clients are too often represented poorly, courts face backlogs of unresolved cases, and people waiting for their day in court fill local jails at taxpayer expense.

Failing to do trials right the first time also means endless appeals on the back end -- delaying justice to victims and defendants alike -- and increasing criminal justice expenditures. And when an innocent person is sent to jail as a result of public defenders not having the time, tools and training to properly advocate for their clients, the true perpetrator of the crime remains free to victimize others and put public safety in jeopardy.

So how many cases should a public defender handle? Though the Review-Journal and Clark County officials are correct that national standards call for jurisdictional-specific caseload standards that incorporate such factors as attorney qualification level and experience -- as opposed to a strict numeric caseload cap -- the same national standards state unequivocally that the ceiling for public defenders is a maximum of no more than 150 felony cases per year. Clark County public defenders presently handle more than double the number of cases permitted under the ABA's standards and those of other organizations and jurisdictions nationwide.

The county's response to the crisis was to add 300 new police officers to the streets, which will inevitably increase arrests significantly and worsen the caseload situation. While no one should question the value of strengthening the police force, to do so without a corresponding number of district attorneys, judges and public defenders to deal with the accused in a constitutional manner shows a complete lack of understanding regarding how the actions of any one component of a system necessarily affect each of the other interrelated parts.

Nor is it cost-effective to withhold adequate funding for indigent defense. Such inadequacies create exposure to costly litigation and settlements with the wrongfully incarcerated. According to a 2003 report by the National Legal Aid & Defender Association, this is particularly true in Clark County. That report put the county on notice that they were in "serious breech" of all national caseload standards. Clark County has already had to pay $5 million to a single defendant, Roberto Miranda, because the county failed to provide him adequate representation.

The Review-Journal editorial ignores these kinds of costs and suggests that the imposition of strict caseload caps would be a "massive unfunded mandate." The editorial ignores as well the U.S. Supreme Court's 1963 Gideon v. Wainwright decision establishing that states have a constitutional obligation to provide counsel to indigent defendants. To the court, the fact that "[g]overnments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime" makes it an "obvious truth" that "lawyers in criminal courts are necessities, not luxuries."

The fact that Nevada state and local governments have failed to see Gideon's "obvious truth" for 44 years does not give them a free pass. Constitutional rights extend to all Americans, not merely those of substantial means. Though state and local government must balance other important demands on its resources, the Constitution does not allow justice to be rationed to the poor due to insufficient funds.

In closing, Gideon speaks to the core values that distinguish the United States from those countries under the repression of dictatorships, theocracies and despots: "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." State and county officials must protect equal access to justice in a system that produces verdicts that are fair, correct, swift and final. Otherwise what message do we send the world when we do not meet our own constitutionally-enshrined values here at home?

David Carroll is director of research for the National Legal Aid & Defender Association. Gary Peck is executive director of the American Civil Liberties Union of Nevada. Mr. Peck is a member of the Supreme Court Indigent Defense Commission. Mr. Carroll is an adviser to the commission.