The Sixth Amendment to the U.S. Constitution guarantees those charged with crimes the right to have an attorney to assist in their defense. The Founding Fathers understood that it would be unlikely for defendants to get a fair trial if they didn’t have someone with legal training to help counter the sizable resources of the police and prosecutors, who were focused on putting the accused in jail.
Over time, the U.S. Supreme Court interpreted the Sixth Amendment to say this right to counsel applied to all defendants, regardless of their ability to pay for an attorney, and it applied to both federal and state courts in which imprisonment was a possible outcome for the accused.
There have been ongoing concerns about how well Mississippi has lived up to this obligation with its hodge-podge system for providing legal counsel to indigent defendants.
State Supreme Court Chief Justice Mike Randolph has made it a priority to get a better handle on the problem — an examination that was intended to begin eight years ago but was ignored by most of the state’s 23 circuit courts, where felony cases are handled.
In April, Randolph issued a directive that requires the circuit court judges to inform the high court and post on the trial courts’ websites how their jurisdictions provide attorneys for indigent defendants. Randolph’s directive is a follow-up to a similar request issued in 2017, to which only three of the 23 circuit courts had ever replied.
Compliance, while better this time, is still not universal. Friday was the deadline that Randolph set for the courts to respond. As of Monday, at least six still had not done so.
Even assuming they eventually get on board, the conclusion of this exercise should be that leaving the counties to handle the administration and funding of indigent defense — as is presently the case in Mississippi — is inherently unfair to the counties and to the defendants. Small counties with weak tax bases can be crippled financially by a few high-profile trials. Since poorer counties are likely to scrimp on what they spend on public defenders, the quality of representation for defendants may hinge where the crime occurs. A few counties have full-time public defenders, attorneys who are government employees that exclusively handle criminal defense cases. Other counties have private attorneys under contract to do the work. Still others maintain a list of willing local attorneys to whom the cases are assigned on an as needed basis.
Circuit Judge Ashley Hines, the senior judge in the Delta’s Fourth District, said he has observed attorneys from all three of these systems of indigent defense and doesn’t think how they are appointed impacts how well the attorneys represent their clients. Nevertheless, he does agree that a state-run and state-funded system of public defenders would be preferable.
Such a system would create a more level playing field in the courtroom between the prosecution and the defense. Prosecutions are state-funded, handled by a system of district attorneys and their assistants. They have virtually unlimited resources on their side, while the defense may be handled by an overworked, underpaid attorney working all on his or her lonesome.
It is an inherently unequal system, weighed more toward winning a conviction than an acquittal.
Randolph and his fellow justices on the Supreme Court do not have the authority to correct this inequity. What they can do, though, is try to persuade the Legislature to create and fund a statewide public defender system, expanding on what lawmakers established early in this century to handle death penalty cases and appeals of felony convictions.
The quality of representation may never be equal between defendants who can afford to hire their own attorneys and those who can’t, but a statewide public defender system could narrow that difference.
