When it comes to those who become targeted and/or arrested by our criminal justice system the key element is neither guilt, nor innocence, it is whether you have access to a lawyer. I wrote about the sorry state of the U.S. criminal justice system in Cheap Justice, Bad Law = A Broken Legal System, The Law Is A Whore and The Law Is A Whore…….Redux. Criminal Justice has been a long term obsession of mine, even while I was writing about it at Jonathan Turley’s renowned legal blog Res Ipsa Loquitor. For instance on January 2013 I wrote about: America’s Broken Criminal Justice System.   Today I read a story that again tweaks my obsession. The story is about the ruling of a Judge in Chicago on the ability of prisoners in jail having access to legal counsel.

Chicago Judge Orders Access To Free Lawyers At Police Stations

Fewer than 1 percent of people in police custody in Cook County ever speak with an attorney.

“Chief Judge Timothy Evans of the Circuit Court of Cook County signed an order Tuesday that would make a county public defender or a designated private attorney available to anyone who is in custody at one of the Chicago Police Department’s 22 stations with lockup  facilities. 

“People watching TV think that’s what happens: You ask for a lawyer, and they just come in,” said Alan Mills, director of the Uptown People’s Law Center, a nonprofit civil rights organization.

In the eyes of the law, everybody is innocent until proven guilty.
Everybody deserves access to justice,Chief Judge Timothy Evans of the Circuit Court of Cook County.

It does work that way if you can afford your own attorney, but few can in Cook County: 89 percent of defendants charged in criminal cases relied on a public defender, according to 2015 county data. 

“Until a judge appoints a lawyer [to an indigent defendant], you don’t see one,” Mills said. “You can’t get a lawyer until your first court appearance. And that dramatically changes the outcome of your case.” 

The inability of people in police custody to access a lawyer before their first court appearance is what Mills and others said has contributed to Chicago’s reputation as “The False Confession Capital of the U.S.” 

“Here’s the scuttlebutt: No one has ever talked themselves out of charge, but lots and lots of people have talked themselves into one,” Mills said. 

Having access to a lawyer before a bond hearing could also mean significant savings for taxpayers. Mills points to the obvious savings from decreasing the number of wrongful convictions. 

“The city has paid roughly $50 million a year in the past decade or so,” Mills said of Chicago’s wrongful conviction settlements and related court costs. “It’s much better to keep people out of prison than to pay them for being wrongfully put there in the first place.” 

Eliza Solowiej, executive director of the 24-hour First Defense Legal Aid group, said major savings would come from eliminating unnecessary jail stays.

To highlight the cost to taxpayers, Cook County Sheriff Tom Dart puts out an annual report of “dead time,” or time served by people whose sentences are less than the time already served or whose charges are dropped. In 2015, about 8,700 people spent time locked up ― at about $143 per person per day ― whose charges were eventually dropped. 

“I want to ensure that constitutional rights are protected from the earliest point of contact with the criminal justice system,” Judge Evans said in a statement Tuesday. “The concept of ‘justice’ demands that we take this step to strengthen an individual’s rights and the public’s  confidence in the system.”

Those of us who feel that the American way of criminal justice has become oppressive in trampling upon our Constitutional right to be deemed innocent until proven guilty, may be heartened by this ruling in Chicago, but it is a drop in the bucket. People being arrested and jailed, awaiting trial without benefit of legal counsel is a formula repeated tens of thousands of time daily in these United States of America.  Even for jail-able misdemeanors the cost of a lawyer is prohibitive if you have a low, or no income. Even those of more middle-class income find themselves struggling to obtain a competent counsel and scraping together the funds to pay costly legal fees.

It must be understood that in almost any trial involving criminal charges there is an extreme imbalance when it comes to the powers of the Prosecution and the Defense.  The Prosecution element has all of the resources of the Criminal Justice System available to convict a defendant.  Against the might of the government, the Defense has vastly inferior resources, unless the defendant is very wealthy, as we have seen in the many high profile criminal cases that have titillated public interest through the years. The Prosecution, besides enormous comparative resources also has the element of time on their side.  Our underfunded court systems dispense justice so slowly and put a defendant under such emotional and financial stress that in more than 95% of all criminal cases a plea bargain is the result simply because the defendant is overwhelmed and exhausted.

“A criminal defendant’s right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the “assistance of counsel” for the accused “in all criminal prosecutions.” This means that a defendant has a constitutional right to be represented by an attorney during trial. The Right to Counsel – FindLaw“
For years though the Sixth Amendment was only considered operative in Federal court cases. In Gideon v. Wainwright (1963) the Supreme Court ruled that Defendants in State and local cases were also Constitutionally entitled to counsel.  For decades upon decades Lawyers dedicated to The Law and to the Constitution have come to defend people who lack funds to hire an attorney. Here is a discussion of the import and impact of the 6th Amendment on American Criminal Justice:  The Right to a Public Defender.
The right to an attorney in criminal proceedings is clearly stated in the Sixth Amendment to the U.S. Constitution, but the real-world application of this right is quite complicated. Even when a defendant’s right to representation by an attorney seems unquestionable, the issue remains of how to pay for legal services. Courts may appoint an attorney to represent an indigent defendant at public expense. Some jurisdictions have established public defender offices, while others maintain a roster of criminal defense attorneys who will accept court appointments. These programs are frequently underfunded and lacking in resources.

The various local Legal Aid Societies and Public Defender offices have done extraordinary work on behalf of those unable to defend themselves in criminal court.  While I have nothing but complete respect for the people who do such work, thinking them true heroes, the truth of the matter is that when it comes to time and resources they are routinely outgunned by the resources available to the Prosecution.

Popular culture and the American mythos also play a role in the dysfunctional Criminal Justice System. Politicians frequently overstate the problem of crime and call for draconian measures to fight crime as a demagogic tool to gain votes.  Trump indeed ran on a Law and Order platform that ignored the dropping crime rates that have been in place for almost two decades. This public fear, which leads demagogues to make spurious claims regarding our Constitutional right is abetted by our mass media, particularly television,  where crime shows represent about 80% of all dramatic series. Most peculiarly, American conservatives, who uniformly have a disdain and distrust of government, are mostly on board with lauding police and criminal prosecutors for doing Gods work. The most ironic factor in this is that their draconian Conservative policies make the pursuit of criminal justice far more expensive than it would be in a more Constitutional friendly and benign system and yet conservatives always are concerned about the costs of things.

While I applaud the ruling of Chief Judge Timothy Evans , Chicago is but one jurisdiction in a vast United States of criminal system injustice.