 | Winston Churchill observed that the true measure of a civilized society is how it treats people accused of crimes.
Justice Black opined that appointment of counsel for an indigent criminal defendant is a fundamental right, essential to a fair trial:
“Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society . . . That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Gideon v. Wainwright, 372 U.S. 335 (1963).
For more than 30 years, Iowa lawyers who have been willing to provide legal defense to the poor have been paid no more than $50 per hour. In fact, for a brief time, it was even reduced to $45 per hour, then later "increased" by $5.
For a moment, think about where we all were 30 years ago, in terms of income and expenses. In 1975, Cincinnati beat Boston in the World Series, the Steelers beat the Cowboys in the Super Bowl, Star Wars was the top movie, and All In the Family the top TV show. Gerald Ford was in the White House, the Watergate clan was headed for jail while Richard Nixon returned to California, and Donald Rumsfeld was appointed Secretary of Defense.
The minimum hourly wage in 1975 was $2.10 per hour - by October 2005 it has grown to $6.50 per hour, an increase of more than 300 percent. Without checking, I'm reasonably sure that the salaries of all legislators, judges, state employees and all others who receive compensation for services rendered to the State of Iowa, save for lawyers representing indigent defendants, have increased.
Little wonder how this happens when you view the constituency that needs representation. It is the poor who can ill afford to hire lobbyists to speak for their needs. It is the poor who are ill-equipped to form an alliance to march on the capitol. It is the poor who are left on the side of the road or pushed to the back of the line when state funds are distributed.
I wonder if part of the problem is labeling. Calling this “legal fees for indigent defense” is a fine euphemism for what it really is . . . addressing the constitutional right of providing legal assistance to the poor who face deprivation of life and liberty.
Advocates seeking fees for legal assistance to the poor need to stand in line with other well deserving recipients of state funding like health, education and public safety. When you don't have enough paint to cover the entire barn, you leave the back of the barn unpainted. Unfortunately, the poor individual charged with a crime is often left behind the barn.
This year, I have adopted as our theme "Lawyer Pride." In each of my letters thus far I have attempted to focus on what we do to show our pride. However, it is difficult to be proud of the way we have allowed the poor to be represented in this state.
To some extent, we all share the blame for not convincing the Iowa legislature to take seriously the needs of the poor as it relates to their right to counsel. Obviously, we have failed to demonstrate a "sky is falling" attitude to what truly is now reaching crisis proportion. Ask any judge in any district to share with you their difficulties in finding lawyers to take cases at $50 per hour; this stipend barely covers their overhead. What will happen when all criminal defendants are pro se, when criminals are set free because the system can't handle the overload, or more tragically, when the innocent are locked up because they are unable to adequately represent themselves?
It is casually quipped that he who represents himself has a fool for a client. So what do you have when innocent defendants, with no legal training, are forced to represent themselves because there are no lawyers willing to represent them at 1975 wages? A tragedy.
Nobody expects the legislature to raise legal fees for the poor to a level of the fees charged by the attorney for the wealthy. However, we should expect at the very least an increase of $10 per hour to compensate those wonderful and compassionate lawyers who are willing to step into the breach for the poor. Bar leadership has now met with the Governor, Senate and House Leadership and the Chief of the Iowa Supreme Court to let them know this will be a priority in the upcoming legislative year. We now need each of you to do likewise.
As members of this honorable and noble profession, we have a few choices. All of us must be willing to represent the poor charged with crimes at $50 per hour. Or we must use our well-trained and well-compensated legal skills to advocate the cause of the poor. Or we can do nothing.
Surely we, the 7,600 members of the best bar association in the land, if we truly focus our skills and energies to the cause, will be able to persuade and convince a majority of the Iowa House and Senate as to the fairness of this argument. When we do so, it will be our best day in court and we can walk with pride to the sound of Gideon's trumpet.
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