Why the right to counsel must be respected

As discussed in more detail by Prof. Doug Berman at his Sentencing Law and Policy blog, Attorney General Holder spoke recently at the Brennan Center for Justice about the level of representation afforded to indigent defendants.

In that speech, AG Holder cited instances of defendants waiting in jail for weeks or months before finally being assigned a lawyer, and other instances of defendants entering guilty pleas without ever speaking to an attorney. These are not isolated instances, but systemic problems. These instances are nothing less than an actual denial of the right to counsel and should horrify even the most “tough on crime” people.

AG Holder also discussed the problem of overloaded public defenders and the inevitable degradation in the level of representation which results in a constructive denial of the right to counsel.

I have reviewed many trial transcripts where it was quite clear that the defense attorney was not able to put forth all the relevant arguments for the defendant and was unaware of the most basic procedural rules – due to either lack of knowledge or simple lack of preparation. While I certainly fault those attorneys for not recognizing their limitations, I also fault the judges (who are charged with ensuring that the proceedings are fair) and the prosecutors (who should be just as concerned that a defendant is not adequately represented as they are in gaining a conviction).

Every participant in a criminal trial – judge, prosecutor, defense attorney – should be willing and able to point out inadequate representation so that we can all have confidence in the system we have created.