When I was growing up I thought that there were certain “inalienable” rights that everyone possessed, and that they given to us by God. I was apparently mistaken. Our courts and politicians have decided that there are lots of “rights” that we all possess, but of which we were previously unaware. In addition to the rights to “life, liberty and the pursuit of happiness,” the right to bear arms, the right to trial by jury, and similar rights explicitly set forth in the Constitution, a multitude of other rights have been discovered. These include the right to privacy, right to medical care, right to determine our gender, right to receive public assistance, and right to receive a minimum wage. I don’t think that these things are necessarily bad, but I am quite certain that our Constitutional founding fathers (and mothers) didn’t have those particular “rights” in mind when they were drafting and debating the adoption of the Constitution.
Whether you agree or disagree about the importance of these newly discovered “rights” they are now here, and probably aren’t going to be rescinded anytime soon, if ever. However, there are important questions related to these new rights. Because they are “new” they have not been precisely defined. We don’t know what is included. Also, the implications of these rights aren’t known or clear. Finally, it is unclear how the costs for these rights will be paid. I want to examine those issues as they relate to the “right to assigned counsel.”
In 1963 the Supreme Court ruled in the case of Gideon vs. Wainwright that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses, who cannot afford to hire their own lawyers. Initially this only applied to defendants charged with felonies. However, over the past 50 years the courts have expanded this “right” to include misdemeanors and other offenses. Today anyone facing a sentence of imprisonment can request an assigned attorney or public defender. The State also expanded this “right” by re-defining what was affordable. Originally this “right” only applied to t hose below the “poverty level.” That level has been raised, but today anyone accused of any offense who earns less than 250% of the poverty level, can request a “free” attorney. According to one State report, up to 85% of all defendants may now qualify for a public defender or assigned attorney.
What does this mean to taxpayers in practical terms. When a crime (“wrong”) is committed, the police must conduct an investigation. Hopefully an arrest is made. The case is referred to the District Attorney for prosecution of the wrongdoer. The defendant (accused individual) is charged. There is now an 85% probability that he/she will be entitled to a public defender or assigned attorney. The taxpayers are now paying for the police, the Court personnel, the District Attorney, and the Public Defender. In many criminal cases all of the attorneys involved on all sides are being paid by taxpayer dollars. There is another negative consequence. Because the defendant isn’t paying anything for his/her attorney, there is no motivation to contain costs. Frequently there are frivolous motions, hopeless appeals, and endless delays.
Because of these newly discovered “rights” the County has had to expand the Public Defender’s Office and Assigned Counsel. We now spend more than $900,000 annually on these programs. In addition, the District Attorney’s Office has grown to deal with the increased number of motions, appeals and challenges. In New York State almost all of these expenses are paid by local taxpayers, not the State or federal government. As a result, law-abiding taxpayers face higher taxes. With a state-imposed “Tax Cap” we face reduced funding for roads, health programs, and other services that might benefit the rest of us. This doesn’t seem “right” to me. In fact, I think it is “wrong.” What do you think?