Criminal justice reform
Recent polls indicate most Americans, including Trump-supporting Republicans, believe there is need for major criminal justice reform. According to a recent ACLU poll, 65 percent of Americans believe that violent criminal offenders can turn their lives around. And despite organized police pushback against the “Ferguson Effect,” most Americans believe the justice system is racially biased. A majority also favor treatment for drug addicts who commit violent acts rather than imprisonment.
Our American Republic is authorized by the Declaration of Independence to use just powers in defense of our rights to life, liberty and the pursuit of happiness. Today, many Americans question if just powers could have created the mass incarceration of our citizens we see today.
The Sixth Amendment to the Constitution guarantees the right to an attorney. The right to counsel was not applied to state prosecutions for felony offenses until 1963 in the landmark Supreme Court case Gideon v. Wainwright. The Supreme Court also requires “effective counsel.”
Government coerces taxes from its citizens to be used ostensibly to protect us, but they have failed to protect our liberty by gross negligence of our due process rights in criminal prosecutions. Eighty percent of defendants in criminal cases need a state-appointed attorney. Yet only 2 percent of criminal justice funding goes to providing public defenders. Many say Nevada has simply not budgeted enough to protect the due process rights of its citizens, especially in the rural counties.
Prosecutors have an incredible advantage over defense attorneys because they do not have to pay for their investigative services. They use the police and crime labs without charge. Public defenders are overworked and underpaid. Most can only spend minutes with a client before deciding whether to accept a plea bargain. Very few of the accused get their day in court but are coerced into taking a plea. People who choose to go to trial with a public defender are too often convicted.
Prosecutors receive favorable publicity and campaign talking points about the guilty pleas their offices collect. Few bother to question how many who plead guilty did so fearing a trial prosecuted by an angry district attorney while represented by an overworked public defender.
On Nov. 2, the ACLU of Nevada sued the State of Nevada and Gov. Brian Sandoval for failing to adequately fund our public defender system. The lawsuit contends that Nevada’s obligation to provide a public defender extends beyond simply providing a body with a law degree. It requires provision of adequate resources to provide an effective defense.
The suit, Davis v. Nevada, focuses primarily on the lack of public defender funding in 11 rural Nevada counties. It charges that Sandoval and others knew of the conditions in rural Nevada due to Nevada Supreme Court reports but did nothing to improve them. The suit alleges the widespread practice of flat-fee contracts that lead to heavy workloads with little time for individual clients. Public defenders are not compensated for travel expenses. Their contracts often require attorneys to get court orders to pay for investigations. There is no infrastructure to provide training and supervision. Many already inadequate contracts include appellate work, which discourages appeals.
Rural counties often contract with private attorneys due to the inadequate State Public Defender’s office. Private attorneys often have more lucrative cases they must spend time on than indigent defense.
Davis v. Nevada asks the Nevada Supreme Court to find that Nevada has been negligent in protecting due process for the indigent, and enjoin the state to submit a concrete proposal to provide indigent defense that is consistent with the US and Nevada constitutions.