Rising to the Defense

For 173 years the Sixth Amendment has guaranteed that every person accused of a crime shall have "the assist ance of counsel for his defense." Yet millions of Americans have been largely or wholly deprived of that right. For one thing, the Sixth Amendment was long held to apply only to the federal courts. State courts were allowed to settle for lower standards, and the poverty of most criminal defendants only made matters worse. Each year 300,000 persons are charged with serious crimes in state courts, said a recent American Bar Association report. "At least half of these persons cannot afford to hire a lawyer to defend them."

What makes defense of the poor "a matter of first importance and endeavor," urged the A.B.A. report, is the Supreme Court's changing stance, a stream of decisions requiring that state criminal procedures be raised to federal standards. Most celebrated: last year's Gideon case, in which the Court ruled that all courts must provide lawyers for all indigents charged with serious crimes.

All this points toward an ideal envisioned by the late Learned Hand, the greatest U.S. judge who never sat on he Supreme Court. "If we are to keep our democracy," he said, "there must be one commandment: Thou shalt not ration justice." Knowledgeable lawyers would add that such rationing has a dangerous practical effect: the victims grow increasingly disrespectful of the police and the courts. But the new drive for equal justice also saddles the nation's 200,000 private-practice lawyers with the duty of fully defending more than 150,000 indigents a year.

Time & Money. One solution is the time-honored tradition of the courtappointed lawyer. But such lawyers often have neither the time nor the money to assemble crucial evidence and witnesses. The more modern answer is a fulltime public defender with an adequate investigative staff and tax support. Yet of the nation's 3,100 counties, only 194 have such agencies; the entire country has fewer than 50 fulltime defender investigators.

The problem is smallest in Los Angeles County, which boasts the nation's first and biggest public-defender office -- a $1,000,000-a-year operation that began in 1914 and now has 69 fulltime lawyers plus ten skilled investigators. Last year the office handled 32,000 cases. Less happy is the situation in Florida, the very state that provided the Gideon case. Florida was obliged to install 16 public defenders throughout the state, but the legislature authorized so little money that even Miami's big-city defender gets only $22,750 a year for himself, two assistants and their combined expenses. Tampa's Defender Joseph G. Spicola, who personally gets $9,750, has " nonetheless cut average pretrial detention from about seven months to seven weeks, saving the taxpayers more than $480 per prisoner. The legislature has yet to be sufficiently impressed to put up more money for defenders.

Battle Training. Combatting such reluctance is a top-priority job for the Chicago-based National Defender Project, the first significant effort to set up a system of fulltime public defenders throughout the U.S. An offshoot of the National Legal Aid and Defender Association, the project was started last year with $2,300,000 from the Ford Foundation. Last month Ford gave it another $2,000,000, which amounted to an openhanded vote of confidence in the project's staff and distinguished new director, the U.S. Army's recently retired Judge Advocate General Charles L. Decker (West Point '31, Georgetown law '42).

A crack criminal defender as well as prosecutor, Director Decker, who was founder of the Army's Judge Advocate General School and of the nation's first independent military judiciary, will siphon much of his Ford Foundation money into model defender agencies in Boston, New Haven, Philadelphia and Washington--"grey area" cities with slum-bred legal problems. Matching funds will go to other cities and counties willing eventually to pay the full bill for embryo defender agencies. Since 90% of court-appointed lawyers are unskilled in criminal law, Project Defender will also support more law-school criminal courses and trial-training internships for recent law graduates. In a day of noncombatant office lawyers, says General Decker, "our biggest job is developing men who can handle themselves in the courtroom."

Today, 90% of U.S. felony defendants are found guilty. Only a sentimentalist would argue that most of them are really innocent. But thoughtful lawyers agree that U.S. criminal justice has been "rationed" all too long. As Director Decker sees it, public defenders should now face public prosecutors in every county in the land, guaranteeing "an even match in .our adversary system of trial procedures."

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