Missouri’s weak commitment to criminal defendants: is there a solution?

The glum face of associate circuit judge John Waters graces the pages of the New York Times, along with photos of Jared Blacksher, who sits in the Christian County jail, awaiting a court-appointed attorney to defend him.

Judge Waters, whose chambers are in the Christian County courthouse in Ozark, Missouri, ten miles south of Springfield, ordered the public defender to represent Blacksher, but the public defender refused, stating that the state of Missouri had not provided funding that would be sufficient to provide a defense to Blacksher and other persons accused of crimes. The public defender asked the Missouri Supreme Court to decide whether the Judge Waters could force the public defender to represent Blacksher.

Persons who have not been accused of crimes wonder why they should pay for the defense of the accused. In 1963, a unanimous decision of the United Supreme Court, Gideon v. Wainwright, determined that the United States Constitution’s Sixth Amendment guarantees every defendant the right to legal counsel in the nation’s courts, with each state required to provide for the defense of those unable to pay for a lawyer, whenever the state charged a person with a crime. Like court-ordered desegregation of schools, this decision is viewed by some as the intrusion of the federal judiciary into an area reserved to the legislatures of the respective states.

In the decades since the Gideon decision, state legislators have had a difficult time justifying the appropriation of tax revenues extracted from law-abiding persons and companies (including non-citizen taxpayers) for the benefit of a class of people who are often later determined to be guilty of something. According to the New York Times article, Missouri ranks 49th among the states in per capita funding of public defender programs.

Lawyers like me, who go to court to resolve real estate and business problems, wonder why we devote so much private and public money to dealing with criminals (and family problems, which is a topic for another day). Taxpayers build courtrooms and jails and prisons and pay for law enforcement officers, with their vehicles and equipment, judges, prosecutors, probation officers, police academies, forensic labs, and so on. Taxpayers in Missouri are spending $34 million per year to provide defenses for innocent and guilty persons accused of crime.

Anybody involved in the system can tell you that a small proportion of the population accounts for the majority of the criminal justice caseload. Though the prison population has increased tremendously in recent years, locking up more offenders has not been enough to lessen spending on the criminal justice system, though crime rates (shown by convictions) have been declining for 30 years.

From an economic perspective, it seems obvious that a large economic sector has grown up that has a vested interest in the criminal justice system at the local level. While most categories of crime have shown substantial decreases over the past 30 or 40 years, the amount of private and public money we spend supporting this system keeps increasing.

The constitutional right to counsel arises before a determination of guilty and before the defendant is required to enter a plea. The right to counsel cannot be separated from the presumption of innocence. The idealism in these constitutional principles seems invaluable to democracy and should be supported by our taxes. This expenditure is more effective and directly related to preserving freedom of Americans than much of what we spend waging war in Asia.

We have to figure out how to rationalize the criminal justice industry, which seems to be built on the repeatedly stupid acts of a small part of the population, who persist in stealing, using drugs, driving drunk and fighting.

Any ideas on where to start?