It is well known and widely reported that criminal justice reform is sweeping the nation. Criminal justice reform is the anomalous political issue for which the ACLU and Koch Industries align. Even the most unwavering American Exceptionalist must take issue with our nation having the highest incarceration rate, with 25% of the world’s prisoners.
Conservative politicians embrace the idea of slashing the costs of harsh prison sentences and the libertarian ideal that the government should not take lightly the deprivation of personal liberty. Of course, criminal justice reform isn’t a hard sale for liberals when the system disproportionately affects poor people of color. Furthermore, the current system hinders those with criminal records from attaining employment and housing, and thus, recidivism rates are high.
Whether motivated by a desire to achieve a fairer justice system, a desire to decrease costs or both, it seems that everyone is on board with criminal justice reform. However, below the surface of this flood of bipartisan optimism, it’s apparent that one indispensible component of a fairer, more efficient system is being overlooked. As stated by Justice Stevens, writing for the Court in United States v. Cronic, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” 466 U.S. 648, 654 (1984).
In many states, the right to counsel is bare bones at best. In others, attempts are being made to chip away at whatever public defender system is in place. For that reason, I’m skeptical that the “Right on Crime” movement isn’t more about being “Cheap on Crime,” and that is categorically incompatible with the progressive and libertarian ideals of criminal justice reform. In fact, the belief that underfunding defense saves money is shortsighted and incompatible with fiscally conservative ideals.
Before calling attention to specific failures of several states to sufficiently fund and support public defender systems, it’s important to understand what’s at stake.
In 1984, Glen Ford, a black man in his mid-thirties, was wrongfully convicted of murder and sentenced to death. After three decades of incarceration at Louisiana’s infamous Angola, his conviction and sentence was vacated and he walked free. Ford is currently 65 years old with stage four cancer, and doctors have estimated that he will pass away in three to seven months. Thirty years of his life, nearly half of his life, was stolen from him and his family, and this came at a costly price. Thirty years of incarceration isn’t cheap, especially when the sentence is death and due process provides for post-conviction representation. How could this happen?
Marty Stroud, the head prosecutor for the Glen Ford trial in 1984 responded to an editorial in The Shreveport Times suggesting that Ford deserves restitution with an apology. Stroud “was confident that the right man was being prosecuted” and he chose not to investigate what he considered to be “bogus claims that we had the wrong man.” He described the 1984 version of himself to be an “arrogant, judgmental, narcissistic” 33-year-old, more interested in winning than securing justice.
He went on to note the unfairness of Mr. Ford being appointed grossly under-qualified counsel. The two attorneys appointed to Mr. Ford’s defense were selected from an alphabetical list of local lawyers. The lead defense attorney was a civil attorney who had never tried a case before a jury. Co-counsel was a civil attorney, two years out of law school. Stroud didn’t appreciate that the defense was underfunded and couldn’t hire experts to impeach the prosecution’s extremely faulty “expert” testimony. He admitted that potential African-American jurors were struck with little thought because he knew it was nearly impossible to prove racial discrimination in jury selection.