Justice on the Cheap

Justice on the Cheap

For many indigent defendants, the right to a lawyer doesn't mean much.


It's right after lunch in Greene County, Georgia, about an hour east of Atlanta, and the old courtroom, with its still ceiling fans and creaky floors, is full to bursting. More than 100 people, mostly African-Americans, have packed the dark wooden benches, and the corridor outside is overflowing with those who didn't land a seat. Judge Hulane George calls for a woman who has been knocking at her chambers to complain about her lawyer.

Tasha McDonald, 30, freely admits her crime–a credit-card fraud of $1,895.35–but refuses to plead, she says, until she gets a lawyer she can talk to for more than two minutes. But even two minutes is hard to get from Robert Surrency, the attorney who has been handed her case. Surrency meets his clients, almost always for the first time, on the courthouse stairs or in the hallway with a dozen others surrounding him like frustrated fans outside a stage door. "Everybody back up. Back up," he says. "I'll talk to you all individually before you go to the judge." Representation means checking a list of plea offers from the district attorney and appearing before the judge, who clinches the deal by ticking off some rights.

"You have a right to a lawyer–not the lawyer of your choice," the judge says primly to Tasha McDonald, ordering the case revisited in another three months. Outside the courtroom, McDonald, in a neat white blouse and a black leather blazer, puts her face in her hands and begins to sob inconsolably. "They don't even know me," she says.

Tasha McDonald's problem is a common one. It's no secret that public defender services are desperately underfunded, especially in poor Southern states. But thanks to a growing breed of "contract attorneys" who win the right to represent all of a county's defendants by offering the least costly bid, the minimum standard for legal assistance has sunk to new lows. As if on a conveyor belt, defendants are uniformly processed to plead guilty. The lawyers representing them often don't know their names, let alone any facts that would affect the outcome of their cases. Frequently, Surrency is not even in court when his clients plead. Another lawyer who knows even less stands in. In a country where little is expected of attorneys for the poor–where it is a matter of debate as to whether a lawyer who falls asleep during his client's death-penalty trial provides effective assistance–contract lawyers are a cheap way for counties to acknowledge their obligation under the Constitution. In reality, their work renders the equal protection clause and the Sixth Amendment right to counsel virtually meaningless.

Contract defenders were born more than a decade after the Supreme Court's landmark 1963 ruling in Gideon v. Wainwright, which declared that poor defendants are entitled to lawyers but left it up to the states to decide how they would be provided. At first, states used one of two systems. Some places, like Washington, DC, and Kentucky, established highly esteemed public defender systems staffed by investigators, social workers, secretaries and veteran lawyers capable of training new ones. But many states, like Georgia, Alabama, Mississippi, Texas and New York, never developed statewide indigent defense systems with the structure, resources and independence to do the job. Most used court-appointed counsel, a system with its own set of problems. At best, judges are able to choose from a list of lawyers with expertise in criminal defense. But often, inexperienced lawyers sign up. Since rates are low, they tend to accept more cases than they can handle.

Beginning in the late 1970s, Congress and state legislatures criminalized more behavior and increased sanctions for crimes, creating mandatory minimum sentences and life imprisonment without parole. They also extended the death penalty to more crimes and provided for the prosecution of children as adults. As the number of indigent defendants soared, so did costs to the counties, since most used court-appointed lawyers paid by the case or by the hour. Local governments, looking for a way to cap expenses, began to replace court-appointed lawyer systems with contract systems. They held auctions where lawyers or firms could offer to do all the work for a period of years–no matter how many cases or how difficult, including death penalty cases–for the lowest lump sum. "It's part of the privatization movement," says Scott Wallace, director of defender legal services at the National Legal Aid & Defender Association in Washington, DC. "Counties like the concept of flat fees. It's a way of controlling costs."

Nobody knows exactly how many counties employ contract defenders, but 21 percent of the nation's 100 largest counties use them, according to a 1999 report by the Bureau of Justice Statistics. Last December Texas Appleseed, a nonpartisan group that works on issues of legal representation for poor people and minorities, reported "a slow but sure movement" to replace assigned counsel systems with contract lawyer systems. The largest increases in the past ten years have occurred in rural states like South Dakota, North Dakota, Oklahoma, Nebraska, Idaho and Georgia, according to Robert Spangenberg, president of the Spangenberg Group, an indigent-defense consulting firm in West Newton, Massachusetts. A few major metropolitan areas have instituted contract systems, Spangenberg explains, but most look to factors other than cost, such as experience, in awarding contracts, and put a cap on the number of cases an agency can perform without obtaining additional funds–as in New York City. "[New York's] is one of the best ones," Spangenberg says of the contract system Mayor Rudolph Giuliani created in 1995, which shoulders 18 percent of the city's caseload. (The Legal Aid Society of New York carries an additional 50 percent, while the rest must endure court-appointed lawyers paid at the second-lowest rate in the country.)

In Greene County, Surrency's winning bid was $40,000 to represent as many poor people as the sheriff can charge (others bid between $60,000 and $70,000), making the county pay out in 1999 an average of $75.38 per case in a state that spent $242.34 per case on average. From 1997 to 1999, Surrency served as a lawyer in 1,455 cases, nearly twice as many per year as the American Bar Association recommends. In the past four years, only thirteen of his clients refused to take the state's plea offer and go to trial.

Pleas are a moneymaking venture for Greene County. Most defendants avoid prison time in exchange for paying county fines and surcharges, which sometimes amount to $100 a month for years. As in other states, a judge can sentence a defendant who either ignores his pay schedule or fails to explain to the court that he can't afford to pay to a "diversion center," where he is required to work for money that is automatically turned over to the county.

Surrency, the judge and the prosecutor form a triangular tag team that pushes people to accept pleas so a full-blown trial can be averted. But even plea agreements require spending time with a client. Missing in Greene County is the ration of justice that is supposed to be meted out between the time of being charged and sentenced, when it becomes clear whether the defendant was the ringleader or acted with intent–the distinctions that make the difference between a severe sentence and a lenient one, or none at all. It can happen in court or out, under the watchful eye of a judge who can make inquiries and pressure lawyers, or in a phone call between the defense lawyer and the prosecutor. If the adversaries can't agree on a "fair" plea, one side holds out until the other blinks, or they duke it out in trial, where relevant facts are the grist for a good defense. "The criminal justice system does a huge amount of sorting out once guilty," says Steve Bright, director of the Southern Center for Human Rights in Atlanta, who worked as a public defender in Washington, DC, for three years. "Whether it's probation, death penalty, boot camp, the punishment depends on the nature of the act." But not in a low-budget contract system.

With his scruffy, uncombed red hair and rumpled clothes, Robert Surrency appears either distracted and professorial, or jaded and tired. "We have successfully done a ten-page calendar in one day," he boasts. In two days, Surrency pleaded forty-eight people, which he refers to as "a uniquely productive way to do business." "No defendant wants to go to trial, because of the possibility that you look more guilty than you really are," Surrency said, explaining that most cases are really "open and shut." However, Marie Boswell, former clerk of the court where he operates, knows otherwise. "We are going to get hit with a lawsuit one day that is going to rock the world."

Watching the proceedings intently in the last row is "H.," 28, a heavily built black man with a shaved head, charged with aggravated assault and battery. H., a restaurant manager about to start nursing school, has never before been in trouble with the law, but his crime is grim. In October he ran his car over his then-boyfriend, ripping off one of his ears. Ben Mitcham Jr., the laid-back assistant DA, initially offered five years in prison and thirty years' probation.

What Mitcham didn't know, because Surrency never raised it, was that H., who is HIV-positive, claims that the victim knowingly exposed him to the virus without telling him. In addition, H. says his crime was without intent: The two were sitting in a parked car arguing and in the process of breaking up when H.'s boyfriend walked off down the highway. "I guess I panicked," he says. "A lot of emotions were going through me. And I don't know how to drive." (H.'s former boyfriend declined to comment for this story.) Mitcham, informed of these facts, said that had he known there was a possibility that H.'s crime was done "in the heat of passion," he would have thought about the case differently. "I didn't make my offer with that knowledge. I wish I had known," he said.

Because an assistant district attorney in a nearby county vouched for H. as a good citizen, Mitcham changed his original offer from five years in prison to five months in a detention center plus ten years' probation. H. says he knew he had to pull some strings after Surrency never returned his phone calls: "I bet if [his clients] all lined up in a lineup he couldn't pick a person out."

Similarly, Mitcham was unaware of the circumstances of Tasha McDonald's crime when he made his offer to her. McDonald is a single mother of three girls, the eldest of whom, Victoria, 10, is an honors student who suffers from muscular dystrophy. At the time of the crime McDonald was in school full time and working in the office of a local resort. There she stole a co-worker's credit card number to buy sheets, dishes, a microwave and a CD player from Sears. "Everything for the house," she says. "I was desperate at the time for me and my kids' sake." Since then she has repaid the money and started a new career as a phlebotomist, a specialist in drawing blood at a hospital. Mitcham, however, after consulting with the victim, offered three to four months in a detention center, which McDonald rejected for fear she'll lose her job and have her children taken away. "I'll lose my home," she says. "Give me fifty years' probation. I just can't be taken away from my kids." In a subsequent interview, Mitcham said he had no idea McDonald had a disabled child. "I am shocked," he said. "That would have made a difference in terms of her remaining in the home."

Surrency sees the problem as the defendant's misunderstanding of how the process works. "She didn't like me telling her what the state offered–as if I were working with the state because I was communicating with the client for the state," he said. The judge rescheduled McDonald's case to be heard in May. McDonald has since fired Surrency and hired private counsel.

One of the few people in Greene County who told me they were innocent was Julian Daniels, 21, a smallish man who works on a quail plantation hanging birds by their legs on a conveyer belt so they can be shocked and have their heads sawed off. He said he had physical proof that the drugs found in the back of his friend's car weren't his, but after calling Surrency three times and receiving no calls back, he resigned himself to paying a $925 fine during the two years he's on probation. "I don't got no choice," he said.

Indigent defense is again making the front pages, after George W. Bush's death penalty record in Texas became an issue in his presidential campaign. Studies proved inmates had been put to death in Texas despite representation by disbarred, suspended or incompetent attorneys. Still, Bush said he had no misgivings about the 145 people executed under his watch. This, together with new DNA technology that has freed eighty-seven inmates on death row, has raised widespread alarm. "I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented at trial," Supreme Court Justice Ruth Bader Ginsburg said when she spoke at the University of the District of Columbia on April 9.

As a result of such scrutiny, Texas, with its former governor now ensconced in the Oval Office and its reputation for toughness secure, has lately conceded some ground. On April 10 the Texas State Senate passed the Texas Fair Defense Act, a bill that for the first time would provide state financing to hire lawyers for poor defendants and set standards for those lawyers. However, according to Bright, "there probably won't be a statewide public defender [system] in Texas in 2050." Experts say it's unlikely that Texas judges will give up control of their courtrooms. Now, each judge can maintain a fiefdom through the power to appoint lawyers. In a recent survey by the Texas State Bar, 30 percent of judges said they knew colleagues who assigned counsel because they contributed to their judicial election campaigns. Others confessed to picking lawyers they knew would move dockets along and not give vigorous representation. In 1999 a coalition of judges pressured Governor Bush into vetoing another indigent defense bill, already passed by both houses. Says Bright: "I wish I could say that there is a political movement to change things. But what happens is that things get so bad in some places, like Texas, where so much attention was focused on lawyers sleeping during capital trials, etc., that it becomes enough of an embarrassment to the bar and the judges that they must do something."

Indeed, the outlook nationally is not encouraging. This April Bush announced he would nominate Richard Nedelkoff for director of the Bureau of Justice Assistance, an arm of the Justice Department that worked on indigent defense issues under Attorney General Janet Reno. Nedelkoff is currently executive director of the Texas governor's Criminal Justice Division, an agency that disburses more than $140 million annually in state and federal funds for criminal justice services. Under Nedelkoff, none of that money has gone to indigent defense. In addition, the American Council of Chief Defenders has sent word to Attorney General John Ashcroft that it would like to continue the periodic meetings it had with Reno, but it has heard nothing in return.

In Georgia, as elsewhere, entrenched interests resist any effort to raise or enforce minimum standards for legal assistance. Although in November the Georgia Supreme Court created a blue ribbon commission to study indigent defense, its investigations have been halfhearted, and it has yet to make a proposal to the legislature. In 1979 the state instituted the Georgia Indigent Defense Council, which recommends guidelines for counties receiving state funds. However, implementing the standards has been difficult. "When we try and suggest that the guidelines are real we get politicians saying they'll undo us," says Michael Shapiro, executive director of the council. Shapiro says that the $6.5 million the state provides to enforce guidelines is too meager to have any effect on counties already spending $40.6 million on counsel for the poor. By comparison, Indiana has reformed about half of its ninety-two counties by reimbursing them for 40 percent of costs for felony cases (and 50 percent in death penalty cases) as long as counties provide trained lawyers with adequate resources to mount a proper defense.

In some towns, defendants seem to have given up on the idea that a lawyer could help. Under Coweta County's contract system in Newnan, Georgia, 218 people–over one-third of indigent defendants–represented themselves from January 1999 to May 2000, according to statistics from the Southern Center for Human Rights. Nationally, only 1 percent of felony defendants represented themselves in the nation's seventy-five largest counties in 1992.

In Georgia counties that employ court-appointed lawyers, things are sometimes not much better. At criminal court in East Point, a working-class suburb of Atlanta, judges can appoint lawyers, but they almost never do. During one recent afternoon of preliminary hearings–which are supposed to determine whether there is probable cause to keep a defendant in jail before indictment–a harried judge speed-read defendants their rights (including their right to an attorney): "eachofyouhavearightagainstselfincriminationtoconfrontawitnesstoberepresented- byanattorneyandtherearesomeoffensesyoucangetafreeattorney." One by one, African-American men and women, wearing orange prison garb for traffic violations, bad checks, assault, drug possession, robbery, driving under the influence and capital murder, agreed to proceed without a lawyer, thus waiving their Sixth Amendment rights. "You would have to be the most self-assured, savvy person on the planet to understand that after the judge reads that jumble of rights so quickly you need to say, 'Hey, I want a lawyer,'" said Marion Chartoff, a lawyer with the Southern Center for Human Rights. "Nobody knows that they have to do that."

Next, the judge would ask whether the defendant wanted a preliminary hearing without counsel or to be waived into a higher court. Most chose to waive to a higher court, giving up their chance to have a preliminary hearing, and with it the chance to determine the prosecution's case against them, begin investigation, get a state's witnesses on record before the prosecution can shape testimony or create the basis for motions to suppress evidence. "They are losing a critical opportunity that will prepare in getting an adequate defense," Chartoff says. When defendants did ask for preliminary hearings, the judge immediately called police and witnesses to testify, and then asked the unrepresented defendant to do a cross-examination. Most defendants, poor and uneducated and almost certainly without law degrees, declined. The judge would then ask the defendant to make a statement. Inevitably, the defendant began to ramble about being guilty of some things, but not of others. "He basically asks them to incriminate themselves in open court," Chartoff says.

Why would a judge make a habit of not assigning counsel or, in a contract system, condone lawyering that is like nothing at all? Perhaps for the same reason that, in 1996, Congress decided to prohibit legal services lawyers from bringing class-action suits, even when using private funds (the Supreme Court found the law partly unconstitutional this February, in Legal Services Corporation v. Velazquez): It helps keep costs down and prevents poor people from clogging up the courts.

At the end of another day in Greene County, there are only three people left on the empty courtroom benches. One is Quentin Strong, a winsome 18-year-old charged with two sales of cocaine within 1,000 feet of a school to an undercover officer. He's sitting with his friend Deloise Jones, who is here to see her son's hearing in an unrelated drug charge. They have waited two days. This is Strong's fourth time in court for this case alone. A judge has already continued it three times for reasons he doesn't understand.

While a more impetuous teen might have given up coming to court and had a bench warrant issued for his arrest, Strong has an incentive to get his case over with. A high school graduate who has been taking the year off to make money, he wants to do his time before the fall, when he moves to Alabama to begin a full basketball scholarship at Tuskegee University. He is concerned about the evidence against him, and managed to talk with Surrency for fifteen minutes on the phone the previous week. The state has offered three months in county jail.

When his case is finally called, however, there is another snag. Mitcham, the assistant DA, isn't sure whether there are two or four counts against him. As Judge George is about to continue the case for the fourth time, Strong interrupts, explaining that he needs to do his time before he begins his scholarship in the fall. "If you have a basketball scholarship you don't want to enter a plea in something you didn't do," Judge George says, deciding to return to the case on a different day.

Afterwards, it is Surrency, not Strong, who is piqued. Following Strong out of court to the corridor, Surrency yells, "You want me to be your lawyer you can't talk! You gotta let me be your lawyer. You're jumping out there and disobeying me." Strong is astonished. Meanwhile, Deloise Jones sees an opportunity to get a chance to talk with Surrency. "What is going to happen to my son's case? Trial today?" Surrency doesn't answer her. Surrency shoots Strong an angry look and reaches for the courtroom door, which he shuts tightly.

For a moment they both stare at the door. But after a beat, Strong realizes what has happened and begins to rant. "He got upset with me? He can't get upset with me because I want to tell the judge something about my case!" He curses. But Jones knows this is no time to reflect. She runs after Surrency. If she reaches him before the judge calls the next case, which could be her son's, she may get a minute.

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