Current Affairs

A Magazine of Politics and Culture

Why the Right to Counsel Is So Important

Because anyone can be arrested, everyone should care about the right to counsel and equal protection under the law.

Stephen Bright is a visiting lecturer at Yale Law School. He was also the Director of the Southern Center for Human Rights in Atlanta from 1982 to 2005 and its President and Senior Counsel from 2006 to 2016. He came on the Current Affairs podcast to discuss the right to counsel with editor in chief Nathan J. Robinson. This interview has been lightly edited for grammar and clarity.

Robinson

Stephen Bright is a personal friend of mine who has the distinction of being the professor in law school who convinced me that being a lawyer didn’t necessarily have to be a huge waste of time, and could actually accomplish some good for some people some of the time. So, welcome, Professor Bright.

Bright

Thank you. It’s great to talk to you, Nathan.

Robinson

I want to talk to you today about the right to counsel. This is something that you’ve written extensively on and has been at the core of a lot of your work. I want to focus on why, in particular, of all the various places where the criminal punishment system fails, the right to a decent lawyer is something that you have tried to draw attention to. In 1963, the United States Supreme Court guaranteed everyone the right to counsel in criminal cases in Gideon v. Wainwright. But there’s a quote from the first article you wrote in the Yale Law Journal in 1994, “Counsel for the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer.” There’s a quote that really struck me. The Vice President of the Georgia Trial Lawyers Association said the test used in Georgia to determine whether a defendant has received an adequate lawyer is the mirror test. You put a mirror under the court appointed lawyer’s nose and if the mirror clouds up, that’s adequate counsel. Essentially, if the person can breathe, they’re a lawyer. Let me ask you, is the core of the problem the fact that the Supreme Court guaranteed the right to counsel without a substantive explanation of what it means to have counsel beyond having a human being who is technically, legally, the person who is your lawyer?

Bright

Well, that’s exactly right. The right to counsel is maybe the greatest unfunded mandate. The Supreme Court said in 1963 that everyone accused of a serious crime had a right to a lawyer. And then 10 years later, it said that everyone accused even of a misdemeanor—or any time there’s a possible loss of liberty—was entitled to a lawyer. But the right to counsel has no constituency. As Robert Kennedy said when he was attorney general, the poor person accused of a crime has no lobby. No one wants to fund the right to counsel and, in fact, the states and the federal government—and, for that matter, the counties and cities that are trying to fine people or imprison people or execute people—have no incentive at all to provide money to defeat that very purpose. So you have a right that, for many states right after the Supreme Court decided this in 1963, the courts just conscripted people. If you were a lawyer, you had to represent some poor person accused of a crime. And that was divided up among the lawyers in a community. Actually, in Louisiana, that still happens from time to time—that people are represented by people who aren’t even criminal lawyers, just so they can check off the box that says a person is represented by a lawyer. Of course, that does not mean that a person is adequately represented. The right to counsel is the most important right a person has because everything depends upon it. If you don’t have an adequate lawyer, you’re defenseless in the system.

Robinson

Let’s talk about the difference between a lawyer who has been conscripted against their will to represent you or who doesn’t have adequate time to represent you. There are differences. Both of the articles that you’ve written about this topic are concerned in large part with the consequences of the differences in the kind of representation you get. And I should tell our listeners and readers that you have represented many defendants in capital cases. You’ve argued before the Supreme Court a number of times. And so you’ve often come into cases where someone hasn’t had an adequate lawyer at the trial level and dealt with the repercussions and fallout of that. So what are the differences between the different levels of representation?

Bright

Well, there’s not a lot of conscription used anymore. There’s a lack of funding. There are several other problems here. In order to adequately represent all the many, many people who are brought into the criminal legal system, you need several things. There’s got to be a structure. There have to be public defender offices that are resourced so that those lawyers have reasonable workloads—they need investigators and paralegals, and there has to be supervision so that there’s some level of competence that’s maintained. Without those things, what you often have in many places in the south, where I’ve practiced, is just a court-appointed lawyer. You have lawyers locally who take on a lot of cases. They’re not in a public defender office, and they’re not organized. They’re just solo practitioners or in small practices. They just take whatever case walks in the door. If you can’t make it in private practice, one way to make some money is to go down to court and take some court-appointed cases. And the more you can handle, the more money you make, because you don’t make very much on any one. And then a capital case comes along. I’ve often seen what happens when a capital case comes along. The judge appoints one of these lawyers—who isn’t even really a specialist in criminal law—to handle a death penalty case, and the lawyer has no idea what they’re doing. They don’t investigate the case properly. They don’t investigate the mitigating circumstances, the reason the person, perhaps, should not be sentenced to death, even if they’re guilty of the crime. The lawyer really doesn’t understand the law. And so they don’t do the most fundamental thing, which is, first of all, to determine if the state has a case against the defendant. Secondly, they should determine whether there’s a defense that can be mounted to the state’s case. And then, thirdly, deal with whatever the answers to those questions are, to try to get as just and reliable a result out of the process as possible.

Robinson

One of the things that I didn’t realize until I took your capital punishment course—which was now eight, nine years ago, and this should have been obvious—was how much labor is required to put together an adequate defense in a capital case and the kinds of things that a good lawyer does. One thing I remember learning is that in the sentencing phase of a capital case, coming up with all of the material that you need to provide mitigation just takes a lot of time. As you said, almost no person who ends up being convicted of a capital crime has come from good circumstances.

Bright

Right. Poverty, racism. Right.

Robinson

And if you look at people on death row, everyone has something horrible in their background, almost universally. But finding what those things are and bringing them out can take a lot of time. The job of the lawyer often is to unearth trauma in people’s lives, and families don’t necessarily want this. And if you don’t have a lot of resources, and a lot of time, you are not going to be able to do this kind of thing. And it’s an essential part of providing adequate representation.

Bright

Well—and this happens less today than it used to happen—but one thing that I see over and over is that a lawyer would get a capital case and they’d have no idea what to do in the penalty phase. They would spend all their time trying to get ready for the guilt phase, and in many cases there wasn’t a guilt phase. There wasn’t a defense in the case. There was a confession, there was a videotape, there were co-defendants who turned state’s evidence. So the real question is whether this person is so beyond redemption that they ought to be eliminated from the human community. And as you just said, there’s always a story. There’s usually a story of abuse, neglect, or often intellectual limitations, mental illness, and things like that. But in order to put that together, as you alluded to, it takes extensive investigation. You have to start the minute you get the case and start looking into things about the client, old school records, military records, mental health records, but even records about the family, because very often you find that whatever may be the issue with a client is generational. That is, you can see it in the parents as well as the grandparents. And so if there comes a question of, is this person faking it or something like that, you can say, Well, this is a mental problem or addiction problem, or intellectual limitations that you can see back two or three generations in the family. And you see all sorts of things about people: those who moved around, I mean children who grew up where they move 30, 40, or 50 times a year; they never were in a stable school; they were never adequately nourished and fed; they often were just neglected or foraged for food on their own. But you’ll never find that out if you don’t look. When we’ve done cases, at trial, at the Southern Center, we would have three or four lawyers on the case, including an investigator to investigate the facts and a mitigation specialist to investigate everything about the life and background of the client that we could. And then we bring in expert witnesses. We bring in people with a master’s degree in social work, whatever it took, to first find out what the story was, and then to tell the story to the jury. And unfortunately, in so many cases, that just isn’t done.

Robinson

When I first set foot in a public defender’s office in New Orleans, in the summer of 2012, I was struck by something. I saw the misdemeanor court—their municipal court—cases in which people can lose their liberty for shorter periods of time. They’re not losing their life. But good representation requires—and I think a lot of people don’t realize this, and it was an eye-opener for me—that every public defender’s office operate like a detective agency. There’s a lot of work that has to be done on an investigation if you’re going to provide a counter narrative to what is going to be presented by the prosecution. You’re working against a very well-endowed and well-resourced prosecution. And what it takes is immense. Not giving the right to counsel any substance just gives people no chance whatsoever. Right?

Bright

Well, that’s right. The prosecution has an immense advantage in terms of information. When a crime is committed, the police respond, they investigate, they take statements, they get information. And when the defense comes to the case, it doesn’t know anything. And in many jurisdictions, almost no information is provided for the defense. So you have to get out there and find it. Oftentimes, that’s very difficult. It takes a lot of time. There are a lot of false starts. You pursue one avenue and nothing turns up. So you have to try another one. You can’t find witnesses. So you’re going to their homes at all times of day and night, trying to find them and subpoena them so they can testify. It takes a lot of time and effort and more than one person in order to do that.

Robinson

How much can the lawyer actually do? We know that the majority of criminal cases result in plea arrangements. And we know that a lot of the reason for that is that defendants are presented with the possibility of losing a very long period of their life in prison or a somewhat shorter period if they agree to plead, and so there’s a coercive aspect to a plea where it seems like the best lawyer in the world can’t get around that sort of imbalance in power and that implicit threat of imprisonment. Are we talking about a subcategory of cases? To what degree do you attribute injustice quantitatively: this percentage of injustice is lack of counsel, this percentage is the law itself? Or how do you think about the relative importance of different places in which defendants’ chances of getting a fair outcome are reduced?

Bright

Well, to test the integrity of the system, you have to know that when the prosecution makes that threat—when the prosecution says if you plead guilty, you can get five years and if you go to trial, you’re going to get 10—in order for a lawyer to give the client any kind of informed advice about whether to do that, they have to note whether the prosecution has a case. Is there a defense to the case? Are there legal issues in the case that might very well determine the outcome? So just to make a decision about what to do, in that situation, if the system is going to have any integrity … I go to courts all the time where lawyers meet, people tell them what the plea offer is, they plead guilty, they never even have an interview with the lawyer, not to mention an investigation of the case, or anything else. But in all criminal cases, sentencing is very important—whether a person goes to prison or whether they are put on probation. Things like that depend very much on the capabilities of the lawyer—the investigation the lawyer does, the knowledge and gravitas that the lawyer brings to the case.

Robinson

One reason that the trial penalty—the fear of losing a trial—is so great, is due to people’s lack of confidence in their case. They know that they don’t have the resources and that their attorney doesn’t have the time that it would take to actually give them a fighting chance. So even if you’re being bluffed about the strength of the case—we’re talking about this as a negotiation, where each party is thinking about what they have in their back pocket—someone who has adequate representation is much better able to hold out than someone who knows that really, at the end of the day, they have nothing if they don’t plead.

Bright

Well, it’s a healthy thing if from time to time, the government is put to its proof. Can you really prove the case beyond a reasonable doubt and convict this person? And if cases are going to trial from time to time and people are well represented, then you do put the government to its proof. And you see whether or not these cases are really worth anything. Because a lot of cases, particularly at the lower levels of the court system, are really cases where someone scratches their head and says, Why did anybody charge this as a crime? And so you get 12 people in the jury box, and you present the case to them and raise these questions, and sometimes people will not be convicted. And this will tell the prosecutor something about the next case, and it’ll tell the defense lawyer something about the next case.

Robinson

How much does the situation vary around the country? I know that there are some excellent public defender offices that have fantastic reputations—like D.C. and the Bronx and New Orleans are very good. But what is the situation in different parts of the country? You wrote about this in 1994. You wrote about it in 2013. But we’re here in 2021. So, how have things changed over time?

Bright

I’d say there are a number of places where things are very good. New Jersey has had a public defender almost since the time that Gideon was decided. Colorado has had an outstanding public defender that is well funded, and it’s got excellent lawyers; they do very good work. Many of the offices in California—in California, it’s county by county— may have an outstanding public defender office. San Diego, for example, is excellent. They have not only a public defender office, but a conflict defender office, and then even another defender office besides that, so that if there are conflict cases, people are well represented. But you go to other counties, and the representation of poor people accused of crimes is led by low bid systems where law firms bid and undercut each other in terms of how cheaply they can provide representation for what some people have called a Walmart system of representation, which really is not fair to Walmart.

Robinson

Everyday low prices, yeah.

Bright

And then you’ve got places like Texas and Alabama, many places that don’t have public defender offices at all. And then you just have local lawyers being appointed to cases. And generally, the amount of money that people are paid is just not enough to encourage capable lawyers to take cases when they can make money doing something else. Of course, every place is different. In 50 states, there are a lot of localities and counties and cities, and so there’s a lot of variation. But we do have some exemplary offices that show how to do it right—like you said, the Bronx and Washington, D.C. But unfortunately, I think we have far more places where we have a long way to go.

Robinson

And changes over time?

Bright

Well, in places that have had public defender offices, as time has gone on, those offices have gotten better. They are people who have stayed in those offices. They have eventually gotten resources. So they’ve provided better representation. I think the most encouraging thing has been the capital defender offices that are in a number of states. In 1992, The Philadelphia Inquirer had an expose about how horrible the death penalty lawyers were in Philadelphia. They had over 100 people sentenced to death. And in 1993, the defender office, the Defender Association of Philadelphia, created a capital trial unit that took every fifth death penalty case. And to this day, not a single person has been sentenced to death. Georgia has had similar success. Virginia had the worst representation back in the 1980s and 1990s; in the early 2000s, they created four regional capital defender offices that started providing lawyers who knew what they were doing to represent people in death penalty cases. And from 2011 until this year, not a single person was sentenced to death. They have only two people on death row. And Virginia realized that they really didn’t need the death penalty, and they repealed their death penalty statute earlier this year. That’s probably the best example of what a difference having competent lawyers makes in cases.

Robinson

People might know that there are fewer death sentences these days. We’ve had, for the most part, a somewhat encouraging reduction in executions, as I understand it, but it’s not because judges just suddenly became more humane. It’s thanks to the efforts of counsel.

Bright

It’s right to counsel. In the 1990s, the country was sentencing anywhere from 290 to 315 people a year. 315 in 1996. In the last five years, 35 or so people have been sentenced to death every year. That’s an incredible decline. Now, starting in about 2000, the numbers started coming down. And that’s all about right to counsel because it’s about places like Georgia, and, as I said, Virginia and Philadelphia, places where people are getting really terrible representation—these places started getting competent lawyers, and the prosecution stopped getting death sentences.

Robinson

That saves a lot of lives. And that really shows the difference. And I think another important point to emphasize is just how important it is to have good counsel when the case is originally brought and through the trial phase. I mentioned earlier that for a lot of your career, you were dealing with cases where a lot of the damage had been done by inadequate representation originally, and these situations are extremely difficult. We learned in your class about the barriers that people face at the appellate level to getting things reopened and looked into and the ways in which judges defer to judgments that were made originally and are reluctant to reverse obvious injustices after the fact.

Bright

Yes. And so in many of those cases in Virginia that were poorly handled—with perfunctory trials or terrible lawyers—very often the courts rejected claims that the lawyers were incompetent by saying that in the court’s view, it didn’t make a difference, that there wasn’t a probability that affected the outcome. Well, we know now that that was wrong. When we provide people with decent lawyers, it does make a difference in the outcome, and people are not sentenced to death. So a lot of the law of upholding death penalty cases on the grounds that the guy would have ended up getting the death penalty anyway—it just simply is not true.

Robinson

That presumably applies to every level, right? Because the United States prison system is so vast, and so disproportionately comprised of poor people, if you add up all the years of people’s lives that they are serving in prison and that they would not be serving in prison had they been well represented, it’s a staggering human toll in terms of the amount of time that people have to spend away from their families and away from society. The difference, we very strongly suspect, is the difference between getting what you are constitutionally entitled to and not getting what you’re constitutionally entitled to.

Bright

That’s right. Poor people comprise 85-90% of all the people accused of crimes. They get a lawyer for a trial or a guilty plea and one appeal. And that’s it. So for most people, there’s no ability to challenge the quality of the lawyer that they had, because they can’t get a lawyer. It’s a catch-22. You can’t get a lawyer to challenge it. And their ability to do it by themselves is like if I go to the airport and the pilots are not there. So I just fly the plane to New Orleans. It’s not very realistic to think that somebody with a sixth-grade education, or somebody who’s intellectually limited, or somebody who’s mentally ill, is going to somehow represent themselves and show that the lawyer that they had was incompetent.

Robinson

This does make a joke out of the rule of law, right?

Bright

It certainly does.

Robinson

If all of these people are serving far longer sentences than they would be if they had their constitutional rights enforced—and if, as we know, you are Harvey Weinstein, or someone who can afford a fantastic legal team, you would not get this sentence—then the sentence is really quite illegitimate under any reasonable theory of law.

Bright

You come into a courtroom where like I was saying: a lawyer meets a client, and they plead guilty a few minutes later. It’s called meet ‘em and plead ‘em. I mean, you’ll see a court go through a docket of around 50 or 200 cases and everybody sitting in the courtroom knows that’s a complete farce. The person never had an interview with a lawyer. There was never an investigation. There was never an assessment of the legal issues in the case. But the judge will take the guilty plea, and then ask the person, are you satisfied with your lawyer? Well, how would the person possibly know? And they haven’t had a lawyer. And of course, they’re told to answer yes, because they won’t take the plea unless the answer is yes. So we go through this farcical proceeding in which everybody—including the people just sitting in the audience, the families—knows that this is just a charade.And so that’s not good for the legal system, and that’s not good for the credibility and legitimacy of courts.

Robinson

What are the other areas in criminal punishment where you think the most unfairness comes into the system? I know you’ve argued cases about jury selection. Obviously you’ve talked about the way that judges are selected for judicial elections. There are lots of different ways in which things can become more or less unfair beyond the kind of lawyer people get. What are the issues?

Bright

I think the most prevalent one that the courts haven’t addressed—and it’s just a disgrace—is race. We know that race influences everything in the criminal courts. It influences the plea that’s offered; it influences the sentence that’s imposed; it influences who’s on the jury. I’ve been in communities that are 25-30% African American, and we still have all-white juries, because the prosecution strikes all the people of color in jury selections. It’s just like the plea decisions—the prosecutor strikes all the people of color, and the judge says, what’s the reason? And they give these ridiculous reasons—that the person’s hair was too long, or they had facial hair or something like that. And the judge says, Yeah, the reason wasn’t race. And everyone knows good well the reason was race. And it’s remarkable that we still have all-white juries today. But when the Supreme Court was confronted with racial disparities in the infliction of the death penalty, it failed to deal with it. They just ducked the issue. And you can go all the way back to Plessy v. Ferguson and Dred Scott in terms of the failure of the Supreme Court. Every time the issue of race came before the court and they were in a position to do something about the influence of race in criminal cases, the court struck out every single time.

Robinson

This is a remarkable record worth dwelling on. The goal is equal protection under the law, yet it is really quite stunning that despite a wealth of evidence that disparities could only be explained by race, the court repeatedly declined to step in. And as a result, I think a lot of the discourse around the problems with the criminal punishment system today centers on policing—on police shootings and arrests. But you focus a lot more on what happens post arrest in the courtroom. Despite widespread evidence of discrimination, it’s been just allowed to run rampant.

Bright

There is very healthy attention to policing and with what goes on with regard to policing and race. I think less attention is paid to the fact that after a person is charged, and they come into the system, prosecutors have an incredible amount of discretion about whether to charge, what to charge, and whether to seek enhanced penalties like the death penalty, or a mandatory minimum sentence of 10 or 15 or 30 years, whatever it may be. And those decisions are made almost always by white men. Ninety-five percent of all the elected prosecutors in the state courts are white. Obviously, that’s not the least bit representative of the country, and 79% of them are white men. You still have prosecutors making decisions all the time about charging and about jury selection, in which race influences their decision—both overt racism but also unconscious bias that many people bring to whatever they do. They think they’re doing the right thing, but they are making decisions that are influenced by their attitudes about race.

Robinson

The immense power wielded by prosecutors is obviously part of what has led to this movement for progressive prosecutors—people like Larry Krasner in Philadelphia, Chesa Boudin in San Francisco. How effective do you think that can be as a point of intervention in the system? Does this make sense given that so much power is held in prosecutor’s offices?

Bright

Well, it does make sense because there’s so much power being held in the prosecutor’s office. Larry Krasner runs for District Attorney in Philadelphia, which we were just talking about, and he says he will not seek the death penalty if he’s elected district attorney of Philadelphia. George Gascón just got elected in Los Angeles and said that if he was elected district attorney in Los Angeles, he would not seek the death penalty. The person that he defeated—the incumbent there—sought the death penalty very frequently. Los Angeles sent a lot of people to death row, almost all of them people of color. And so now you have a different district attorney there. So there are some issues where that makes a big difference. As somebody who spent years getting a capital case together—remember all the things we talked about earlier about what’s involved in preparing a case and presenting it—to have a prosecutor come in and with a stroke of the pen say, we’re not going to have any more death penalty cases, that’s not insignificant. I think a lot of people don’t realize that. And other decisions about whether to charge children as adults—are we going to send this child to life without parole or with a long adult sentence? Or are we not? Are we going to charge minor marijuana cases and things like that and ruin people’s lives with those convictions? Are we going to insist upon bail, which often means people stay in jail and lose their jobs? So those are all areas that are important. There are still going to be crimes committed, and they’re going to be prosecuted. But there are certainly very different ways of looking at cases when they come into the system.

Robinson

As you look out over the next 10 years, what are some of the realistic kinds of changes that could make the most difference in eliminating the more serious forms of unfairness from the criminal punishment system? Obviously, it’d be nice to get the death penalty cases down from the 30s to zero.

Bright

Now that Los Angeles doesn’t have the death penalty, we’ll see a decrease in ten cases a year just by virtue of that. Maybe in other places, the improvement in the quality of lawyers may bring that number down. There is reason to be encouraged about what places are doing with regard to jury selection. California adopted a statute recently. They said, from now on, we’re not going to try to do the impossible, which is to figure out whether the prosecutor is motivated by race when they exercise their strikes against Black people in jury selection. Instead, we’re going to just say, Objectively would a reasonable person, knowing all the facts, think that race was a factor? That’s not a panacea, but it’s definitely an improvement. Arizona has now decided to do away with peremptory challenges all together. That’s a remarkable development. Thurgood Marshall proposed that over 30 years ago, and not a single jurisdiction, anywhere, had taken him up on it. And now Arizona will, as of January 1, no longer allow peremptory strikes. I’m not sure I would have gone for that. I might have reduced the number of peremptory strikes to three so that each side would still be able to exercise some influence but not be able to distort the racial composition of the jury so much. The most important thing is continued improvement in the right to counsel and making sure that people in all kinds of cases, particularly the ones that you ask about—the misdemeanor cases—that there’s no minor case for a person charged with a crime. There’s no minor case for a person who gets locked up and is in jail, loses their job, maybe loses their home, loses their means of transportation, their whole life totally screwed up based on some very minor charge.

Robinson

It’s really a record that follows them for life.

Bright

And they have a record. As we’ve talked about, whether people are arrested and all that depends so much on race. I had a young African American man who worked in my office as an investigator. A great young man who did great work. It was just remarkable how many times he got stopped by the police just driving to work and back. He was stopped all the time. You have Tim Scott, the Senator from South Carolina, talking about how he has been stopped. This is going on everywhere. In the case of Tim Scott, he can probably talk his way out of that or show them his United States Senate card and probably get by, but particularly people that are living on the edge—mentally ill people, people that are really struggling—sometimes a minor thing results in a police encounter, which then sometimes ends in death, or sometimes in serious injury, and oftentimes ends in an arrest and the person going to jail, even though the charges may be dropped the next day.

Robinson

At the very least, we can give people a robust right to counsel. You don’t have to have any sympathy for the guilty to believe in a robust right to counsel, right?

Bright

This is just basic fairness and equality. That’s what this is about. Of course, there are people who commit serious crimes. And of course, whether you’re the most progressive prosecutor or whoever you are, you’re going to have to prosecute that case and make some decision about what the best appropriate outcome is and advocate that with the court. So nobody’s denying that. But most of the stuff that comes into the court is small stuff, municipal courts, where people are arrested on all kinds of minor traffic offenses. Sometimes traffic offenses, like drunk driving, are serious, but most traffic offenses are not very serious. But people are fined. I see a lot of people who come into those courts and they can’t pay the fine. So they’re put on probation and have to pay the fine on the installment plan. But that includes paying $50 a month to the private probation company for collecting the installment. And you have a lot of people that can’t pay because they don’t have any money. They can’t pay on any kind of plan. And yet, after they go six or seven months and are unable to pay, then they’re locked up for failure to pay in our country’s debtor prisons.

Robinson

Another revelation I had when I first went to the New Orleans courts was seeing the traffic court where people were brought in in chains and orange jumpsuits to the traffic court. And there was an ATM right outside the courthouse doors. It really ended up being little more than an extortion racket.

Bright

That’s what it is. You have little bitty towns—I mean little bitty towns—where all they do is arrest people and fine them and that’s how they fund the whole town.

Robinson

The Justice Department’s Ferguson report was very interesting. It explains how this model works. It’s a very good report. They show how the town revenue was so dependent on the cops going out and basically stopping anyone—not even residents of the town, but people passing through—getting them on something, and then keeping them in debt to the city of Ferguson, Missouri for as long as possible.

Bright

In that county, St. Louis County, they had all these municipalities, and they were all doing that. And they have these part-time judges and part-time lawyers. And there was a proposal, after the Justice Department gave that report, to consolidate all those courts and to do away with all this extortion in the courts. And yet it didn’t go anywhere. There was tremendous resistance to it because municipalities are making so much money from those funds.

Robinson

When we’re talking about capital punishment, we’re talking about it to people who obviously are horrified by horrible crimes. When you’re dealing with death penalty cases, you’re dealing with, oftentimes, crimes that are in themselves indefensible, and really difficult to discuss. We’re talking about those kinds of cases. There are various ways in which we humanize defendants, and it’s important to see people as more than the worst thing they’ve ever done. But, with so much of this, we really don’t even need to get to that point because we are just talking about making sure there are basic procedural guarantees that every person is entitled to when they come into contact with the state and could lose their liberty.

Bright

Everybody has an interest in this because anybody can be arrested. How we treat people in the court system is obviously critically important for the kind of society that we want to be.

Robinson

How does the right to counsel change and get better? Is it really a local level thing where the place either chooses to fund a good, strong public defender office, or they don’t? Is there a path to universal quality representation in this country?

Bright

It depends. In the states that have taken it on and have comprehensive public defender programs like New Jersey and Colorado, that’s what needs to be done. But then you have Pennsylvania, which leaves the representation of poor people accused of crimes to each county. California does that, too. And to some extent, New York does that. So you may have very good representation in certain parts of New York—like in Brooklyn and the Bronx and Harlem—and then you may go out in the state and find extraordinarily bad representation because there’s no system there to provide it. And the people that are providing it are not paid very much money. Same thing in California, all over Pennsylvania. The Defender Association of Philadelphia is one of the most outstanding public defender offices in the country, but then you can go to other counties in Pennsylvania, and the representation is dreadful. And you go to Montgomery County, which is right outside of Philadelphia, and when the public defenders stood up for their clients on one issue, the judge there fired them. And independence is another critical thing. When I was talking about the different things we need, what we need is structure, resources, and supervision. But critically important is independence. Consider systems like Houston, Texas, where lawyers contribute to the judges campaigns, and in response—in appreciation—the judges then appoint those lawyers to cases, even though they’re totally incompetent, and pay them a lot of money, actually, for doing a bad job. You’ve got to have independence. If the judges are in charge of representation, you’re going to see a lot of lawyers appointed not because they’re going to give the client good representation, but because they’re going to help the judge move the docket. And even if the judge doesn’t mean that—if the lawyers have the perception that if they stand up for their client, or are too zealous, the judge may not give them any more cases, then maybe they won’t file that motion. Maybe they won’t make that argument. So that’s just a totally unacceptable system as long as we’re going to say that we have an adversarial system—and, for better or worse, that’s the system we supposedly have.

Robinson

Obviously, a lot of this comes from the desire to shuffle as many people through the system as quickly as possible. In a world in which we were doing this correctly, there wouldn’t be such a thing as an outstanding public defender’s office, because you’d have a universal standard of quality. In order to have fair laws that apply equally, you really can’t have any differences in the quality of representation. If the quality of representation makes a difference to your outcomes, then it seems like having any kind of law that you can say applies equally means that this is one of the most essential guarantees that you have to enforce.

Bright

Well, Hugo Black said when he was the justice of the Supreme Court of the United States, there can be no equal justice when the kind of justice a person gets depends upon the amount of money he or she has. In the system today, nothing could matter more than the amount of money a person has. So if we really want to make good on that—and last time I checked, it still says equal justice under the law on the Supreme Court building—then we’ve got to do a lot better.

Robinson

Professor Bright, thank you so much for talking to me today.

Bright

Well, it’s great to see you again, Nathan. Great to talk. Thank you for giving some attention to this issue. It’s very important, and I appreciate it.

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