Sixth Amendment Right to Counsel in Jeopardy
Washington, DC (October 10, 1997) -- (updated November 3, 1998) -- Fixed-price contracts for providing legal representation to poor Americans accused of crimes or wrongdoing are effectively wiping out the Sixth Amendment right to counsel, violating citizens' rights and leading to wrongful convictions, according to a report the National Association of Criminal Defense Lawyers released Friday. The report charges that the practice of "low-bid contracting" is designed to "process the maximum number of defendants at the lowest cost -- without regard to truth, justice or innocence."
The report, Low-Bid Criminal Defense Contracting: Justice in Retreat, was shared with 255 state and local bar presidents, chief judges and lawyer disciplinary bodies. It warns that the current trend of processing the most convictions of indigent citizens at the lowest cost threatens to reverse the very modest gains in quality legal representation which followed the Supreme Court's 1963 landmark decision in Gideon v. Wainwright. To reverse that trend, NACDL says, "national, state and local bar associations must move beyond hand-wringing and begin an affirmative campaign to enforce existing Rules of Professional Responsibility, and consider new [rules] to deal with . . . abuses of due process and equal justice under law."
"Both current and proposed contracts for legal services for the poor need to be carefully scrutinized to make sure that they don't result in anything less than quality representation," NACDL President Gerald B. Lefcourt said in a letter accompanying the report. Nor should they in any way foster unethical practices by virtue of low-bid compromising of the level and kind of legal representation to which all citizens are rightfully entitled."
Frequently, low-bid contracting has resulted in one or two attorneys handling a jurisdiction's entire indigent defense caseload for a year for a single low payment. This leads to impossible caseloads, without even an illusion of constitutionally-effective assistance of counsel to those defendants unable to secure their own criminal defense attorney. Fixed price contracts "inevitably" result in case overloads and inadequate representation, with built-in incentives to process cases quickly and disincentives to take cases to trial, according to the report. Such systems discourage the use of investigators, forensic specialists, expert witnesses and other requisite assistance because contractors often must pay for these services out of their own pockets or forgo them altogether.
The report recommends that disciplinary action be taken to remedy low-bid contract systems which fail to live up to the Code of Professional Responsibility if other remedial actions fail.
NACDL's Board of Directors recently reaffirmed the organization's commitment to excellence in criminal practice. At the Association's Annual Meeting in Seattle in August, the Board unanimously voted to amend its policy on assigned counsel to provide, among other things, that indigent defense contractors limit their caseloads, have a minimum level of experience and ongoing training, and be permitted to have sufficient related resources, such as investigative and expert assistance in appropriate cases.
"Together, we must acknowledge a professional responsibility to examine and monitor these contracts as to their actual performance and results, as well as their explicit commitments, conditions and terms," Lefcourt said in the letter. "No contract should be allowed at the outset, or be allowed to continue intact, without substantial and demonstrated guarantees of ongoing quality representation."
The National Legal Aid and Defender Association (NLADA) echos NACDL's recommendations. NLADA's Director of Defender Legal Services H. Scott Wallace, in a memorandum endorsing the NACDL report, said, "When contract attorneys end up with far more cases than they can possibly handle, with no resources to investigate the facts or present vital expert testimony, injustice and conviction of the innocent become inevitable. And when our nation reserves such injustice for the poor, it makes a mockery of the precious constitutional promise etched above the Supreme Court portal: 'Equal Justice Under Law.'" In December, NLADA expects to finalize a Model Contract for Indigent Legal Defense Services.
The report, President Lefcourt's cover letter, and NLADA's accompanying memorandum are available by clicking on the appropriate buttons below. For NLADA comments, contact Scott Wallace at (202) 452-0620.
Strategies for Enforcing Disciplinary Rules Applicable to Low-Bid Criminal Defense Contracts
Low-Bid Criminal Defense Contracting: Justice In Retreat
Letter from NACDL President Regarding: Substantial Participation of the Private Bar in Ensuring Sixth Amendment Guarantee of Right to Counsel
NLADA Memorandum Regarding: "Low Bid Criminal Defense Contracting: Justice in Retreat"
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.