I heard this story on NPR (yes, I listen to NPR) this morning. Short version: A lot of individuals are cooling their heels in jail while the New Orleans “justice” system gets around to hearing their cases. At least one judge is — as he ought to do — threatening to dismiss the cases of defendants who aren’t receiving the “speedy and public trials” guaranteed them in the Constitution.
A big part of the story, however, is the public defender angle: What with people fleeing the flood and all, the public defenders’ office is understaffed and, as always, under budget. This wouldn’t have caught my attention, except that the city prosecutor was also cited as admonishing the public defenders to “live within their means” like regular people. And that raised some questions in my mind.
Assuming that, for the foreseeable future, prosecution of crimes will be tax-financed (and we all know that it will be), and that, for the foreseeable future, the right to counsel will be construed by the courts to require a tax-financed attorney for those who can’t afford to pay their own (and we all know that it will be), then I don’t see any reason why public defenders should have a budget problem, because:
In every criminal prosecution, there is a prosecutorial team and a defense team. If both teams are tax-financed, then they should receive equal amounts of tax money to pay for their operations.
In other words, the public defenders’ budget should be the same as the prosecutor’s budget, perhaps with a rebate-to-the-treasury requirement for each criminal defense that the public defenders don’t handle. A public defender should be paid as much as a prosecutor. A public defender should have just as much money to investigate, test evidence, etc., as the prosecutor opposite.
A few minutes on Google didn’t suffice to find the budget numbers, but I’m willing to bet that Mr. Live-Within-Your-Means’s budget for the city prosecutor’s office is a double-digit multiple of the budget for the public defenders’ office.
I’m willing to bet that his assistant prosecutors take home a bigger paycheck than those public defenders, and that there are more of the former than the latter.
I’m willing to bet that the prosecutor doesn’t bat an eye at spending money to have a DNA sample tested on the off-chance that it may prove guilt — and that the public defender doesn’t have enough money to do so on the off-chance that it may prove innocence, unless he or she is able to get a judge to order the testing done.
And I’m willing to bet that it’s that way not just in New Orleans, but everywhere.
The Constitution enumerates several rights of the accused, and none for the prosecution — so why should the accused be placed at a disadvantage in a matter of public expenditure? The American tradition of jurisprudence rests on presumption of innocence — so why should the work of proving guilt be given a financial advantage at public expense?
The usual caveats, of course: Yes, I oppose public funding of just about everything. But to the extent that the justice system is publicly funded, shouldn’t the justice system be … justly funded?