The fruits of “zero tolerance” and the “War on Drugs”

America’s prisons and jails hold more people, in sheer numbers and on a per-capita basis, than any country on earth, including China, Cuba and Iran. Those prisons and jails are kept full through the ceaseless work of a massive criminal justice apparatus that processes the 14 million people arrested every year, on an average of about 26 every minute, according to the Justice Department. The vast majority of those arrested are poor, often desperately so; many are mentally ill, homeless or addicted to drugs and alcohol. Only a small percentage can afford a private attorney.

The rest are represented by a public defender, free of charge. This extraordinary right dates only to 1962, when the Supreme Court heard the case of Clarence Gideon, a penniless and uneducated Florida man forced to represent himself in a felony robbery case after being denied a court-appointed attorney. In a landmark decision, the court ruled unanimously that denying free counsel to Gideon, who was sentenced to five years in prison, violated his right under the Sixth Amendment to a fair trial. The decision created the nation’s public defense system, as legislatures in every state passed laws creating programs to provide all criminal defendants with counsel.

Fifty years later, this public defender system is widely seen as failing, overtaxed by improbably high caseloads, poorly supervised and catastrophically underfunded. Except for the comparatively small number of defendants charged in federal court, the provision of attorneys to the poor is left exclusively to the states, creating a patchwork of 50 autonomous systems functioning without federal oversight. State legislatures fully underwrite many systems; others are supported through a mix of state and local funding. Regardless of where the money comes from, there is never enough to go around.

Luzerne County’s defenders weren’t always so overwhelmed, says Flora, who became chief public defender in 2010. He first took a job with the office in the early 1980s and never left. When he started working there, a first offense for drunk driving was settled with a $50 fine. Today, depending on the circumstances, the same charge can carry a prison term of up to five years. “Back in those days the amount of files you would get was not that much,” he says. “You weren’t slammed with cases.”

Pennsylvania Public Defenders Rebel Against Crushing Caseloads,” by John Rudolph, Puffington Host, June 16, 2012

National Association of Criminal Defense Lawyers (NACDL)

You Commit Three Felonies a Day,” by L. Gordon Crovitz, The Wall Street Journal, September 27, 2009

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