Tag: NACDL

NACDL Report Highlights Failings of Indigent Defense System; Let’s Try a Freer Market

A new report from the National Association of Criminal Defense Lawyers highlights the myriad inadequacies in the current system of federal indigent defense. 

NACDL identifies “Seven Fundamentals of a Robust Federal Indigent Defense System,” including a system insulated from judicial interference, adequate funding, sufficient training and expertise among indigent defense lawyers, and greater transparency, and finds each of them to be lacking under current circumstances.

The nuts and bolts of how the current system fails to adhere to those fundamentals can be found in the full report here.

Notably, one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system. 

As the NACDL report itself notes:

Short of warfare, there is no more awesome use of governmental power than the power to prosecute.  A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself.  For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution.

Given the stakes, it seems bizarre that those individuals who have the entire weight of the state brought to bear against their liberty should depend on that very same state to choose the person to represent them.  It’s certainly true that public defenders tend to be undercompensated and buried under incomprehensible caseloads; but it’s just as true that a public defender system fails to respect the agency of the people who have the most at stake.

The introduction of defense vouchers, which would allow indigent defendants to choose their own lawyers rather than have that all-important decision made at random by a judge or public defender, was the subject of a Cato Policy Analysis in 2010 by David Friedman and Stephen Schulhofer. It would allow defendants a say in their representation and force lawyers to compete to serve them. In doing so, it would come closer to ensuring those fundamental principles of indigent defense than any entirely government-run system is likely to.

The voucher idea is not just a theory; a version of it has now been implemented in Comal County, Texas, which you can read about in more detail here.

When the government takes the immense step of putting someone’s life or liberty in jeopardy, why shouldn’t that person have at least some choice in who will defend them?

Theory: The Supreme Court Could Apply the Terms of the Fourth Amendment in Fourth Amendment Cases

The Supreme Court could apply the terms of the Fourth Amendment in Fourth Amendment cases.

I know. Weird idea, right?

But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.

The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”

Jim Harper, director of information policy studies at the Cato Institute and one of the authors of Cato’s amicus brief in Jardines, regularly makes the argument that “[a] ‘search’ occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in ‘plain view.’ People maintain ‘privacy’ by keeping things out of others’ view, exercising control over personal information using physics and law.” The “Harper Theory” of search and seizure encourages judges, lawyers, and law enforcement officers to revert to the “plain meaning[]” of the Fourth Amendment’s use of “search” and “seizure.”

That’s right. The idea of using the words of the Fourth Amendment rather than stacks of confusing doctrine now has a name, and it’s the “Harper theory.” I guess I thought of it, so it’s named after me!

In seriousness, it is a challenge to recognize seizures and searches as such in “high-tech” contexts. Today’s problems with the Fourth Amendment—and the problem of doctrine obfuscating the text—began in 1929, when the Olmstead Court failed to recognize parallels between that era’s high-tech—telephonic communications—and written material sent through the mail.

But it is possible to recognize electronic and digital documents and communications as papers and effects. It is possible to recognize seizures when invasions of property rights occur in whatever form. And it is possible to recognize searches as efforts to discover information that is otherwise concealed from view. All this makes it possible to apply the words of the Fourth Amendment in Fourth Amendment cases.

I’m complimented if that’s called the “Harper theory.” I feel like I got it from Cardozo.