Last July, a homeless man named Hubert Lindsey was stopped by police officers in Gulfport, Miss., for riding his bicycle without a light. The police soon discovered that Lindsey was a wanted man. Gulfport records showed he owed $4,780 in old fines. So, off to jail he went.
Legal activists now suing the city in federal court say it was pretty obvious that Lindsey couldn't pay the fines. According to their complaint, he lived in a tent, was unemployed, and appeared permanently disabled by an unseeing eye and a mangled arm. But without a lawyer to plead his case, the question of whether Lindsey was a scofflaw or just plain poor never came up. Nor did the question of whether the fines were really owed, or if it was constitutional to jail him for debts he couldn't pay. Nobody, the activists say, even bothered to mention alternatives like community service. The judge ordered Lindsey to "sit out" the fine in jail. That took nearly two months.
Lindsey isn't the only poor American to face a judge on dubious charges without adequate legal representation. Far from it. More than 40 years after the Supreme Court ruled that competent counsel was a fundamental right of all Americans accused of crimes, the American Bar Association says thousands of indigent defendants still navigate the court system each year without a lawyer, or with one who doesn't have the time, resources, or interest to provide effective representation. Whether they face serious felony charges or misdemeanors, the poor often find themselves alone in a sometimes-Kafkaesque system where they have little, if any, voice.
Without advocates, some poor defendants serve jail time longer than the law requires or plead guilty to crimes they didn't commit just to get out of jail. A few, as has been documented, receive the death penalty or life in prison because their court-appointed lawyers were incompetent, lazy, or both. Most shocking, says Norman Lefstein, who chaired the American Bar Association's Indigent Defense Advisory Group, "is the lack of overall real success, the lack of progress" given the overwhelming evidence that inadequate counsel often leads to wrongful conviction. The many cases we know about "likely are only the tip of the iceberg," he says. "This is an enormous problem."
Kicking and screaming. It's also quite a complicated one. The federal government has been slow to the game, both in providing funds or setting rules. That means that each state, and often each county, is left to its own devices on deciding how to fund and institute indigent-defense programs. Funding is a perpetual problem. In New York alone, there are more than 95 different systems. Sometimes, representation is determined by whichever lawyer bills taxpayers the least, no matter that the lawyer could have a full load of other pending cases.
It's not hard to see why the bottom line has such pull. Most states have a hard time coming up with the necessary dollars for indigent-defense programs, and only 27 attempt to provide full funding. That leaves already-strapped cities and counties on the hook for most of the costs--costs that must be weighed against local needs, from new roads to sewer upgrades and firehouses.
While several states have enacted some reforms in recent years, most have been dragged kicking and screaming to the table, often on the heels of civil rights lawsuits, court orders, or striking examples of injustice made public. And while such reforms are welcome, critics say the jury is still out on how well they are implemented. In Georgia, for instance, new public defenders are required to contact their clients within 72 hours of their arrest, but there is no requirement that they do much else until a defendant has his day in court. In one case, a public defender representing a severely mentally ill woman facing a parole violation had contacted his client only once after her arrest and was not scheduled to see her again until a bond hearing set for nearly two months later. John Cole Vodicka, director of the Prison and Jail Project, a watchdog group active in southern Georgia, says the public defender didn't even meet with the woman personally on the first occasion; he sent her a form letter. Cole Vodicka left several messages for the lawyer, saying that he knew the woman from his church and that he could help get in touch with character witnesses with knowledge of her troubles and her mental illness. The lawyer failed to call him back, Cole Vodicka says. The woman's case is pending. Asked about the case, Samuel Merritt, the head of the public defender's office in that circuit, said his office should have fought more aggressively to schedule the woman's bond hearing for an earlier date, but he says the new system is generally working very well.
At least Georgia is trying. In many cities and states, advocates say, it appears officials have just ignored the law. The New York Civil Liberties Union has threatened to file suit against New York State. While New York City, which has a well-funded legal-aid office, is in many ways a model for other locales, the rural counties upstate are another story. In Schuyler County, lawyers for the National Association for the Advancement of Colored People's legal defense fund say an investigation they conducted revealed a system where indigent defendants routinely sat in jail for weeks or months without seeing a lawyer. Often they went through the entire court process, from arrest, to arraignment, on through bail hearings and even through plea bargains, without ever consulting an attorney. One public defender, they say, deliberately kept his phone off the hook.
Then there's Gulfport, the second largest city in Mississippi, which, up until Hurricane Katrina hit, was beating the pavement looking for those who owed fines for things like public profanity--at $222 a pop. The result of Gulfport's fine-reclamation project was that while it collected modest sums of money, it also packed the county jail with hundreds of people who couldn't pay. The Southern Center for Human Rights filed a federal civil rights lawsuit against Gulfport last July. Attorney Sarah Geraghty says that before bringing the case against the city, she witnessed hundreds of court adjudications involving Gulfport's poor in which no defense attorney was present or even offered. Many defendants, Geraghty said, were obviously indigent, mentally ill, or physically disabled, like Hubert Lindsey; some had been jailed for fines they had already paid. One mentally ill woman attempted suicide by jumping from an elevated cell in the county jail after she was picked up for having failed to pay several city fines; the lawsuit alleges that police then grabbed her again on the same charge a few months later, causing her to miss the surgery scheduled to fix the broken bones in her feet.
The city says it is still reviewing the lawsuit, but there is talk of a settlement. And Geraghty, who recently sat in on the court's proceedings again, says judges are now advising indigent defendants of their rights. But it never should have taken a lawsuit, adds Geraghty, noting that the problem with the city's actions was clear: "It's illegal. Period."