Human rights pay price of cost curbs

US lawyers believe that introducing a public defender system in Britain would be a mistake, writes Morag Preston.

Nobody is surprised when the UK takes its lead from the US. British pubs, shops and television channels have all been revamped the US way. Now it is the turn of the British justice system.

But some US lawyers are uneasy that the British government is taking steps to set up a public defender system modelled on their own. They acknowledge that maybe, on this occasion, the US does not know best, and that a US style network of state salaried lawyers is not the optimum way forward for the UK.

Public defender programmes have been operating in the US for more than 30 years. Different states have different approaches to funding legal representation for criminal defendants who cannot afford a lawyer, but most have adopted a “mixed model” system in which private attorneys provide a certain amount of representation in indigent cases. The Scottish pilot for public defenders has been based on this model, which the Solicitors Legal Aid Board says is so successful in other jurisdictions.

“From the Government's point of view, it seems like a nice idea to try and keep a handle on costs, but it doesn't make a whole lot of sense when you're dealing with people's liberty,” says George Gormley, a criminal lawyer based in Boston, Massachusetts. “Every case will be viewed as an assault on the contract price, and the quality of service will suffer.”

Massachusetts is widely acknowledged as having one of the most successful systems in the US. Private attorneys are paid relatively modest rates and handle 90 per cent of all cases. The remainder are dealt with by 126 salaried public defenders.

Gormley, who occasionally picks up court-appointed cases “as a matter of public service”, and to sharpen his skills as a criminal defendant, jokes that if criminals get to hear about the shake-up of the British justice system, then it may do something to lower the criminal rate in the UK. “I'm not sure I'd want my life to be in the hands of the lowest bidder,” he says.

“It's not the function of a criminal defence lawyer to be efficient, but to fight the system and get the best result for his client. If you start to introduce concepts of efficiency, it's the client who will suffer.”

When the British Government sent a task force on a fact-finding mission to the US, with a view to setting up a Criminal Defence Service in the UK, they knocked on the door of Douglas Eakeley, chairman of the Legal Services Corporation in the US (an organisation similar to England's Legal Aid Board) for the past five years. Eakeley, a partner of Lowenstein Handler in New Jersey, is well aware of some of the advantages and disadvantages of a public defender system. Primarily, he says, the task force was interested in finding out how best to save money.

“It looks like it was budget-driven, rather than driven by a concern that the quality of justice was somehow lacking and being eroded,” he says. “I think whenever you get a situation where something that works effectively is being dismantled for budgetary reasons, it gives one considerable cause for concern. It looks like there is a real risk that individual human rights may be sacrificed at the altar of monetary savings.”

Chronic under-funding has plagued public defender systems in the US, resulting in what high profile US trial lawyer F Lee Bailey referred to as the “mass production” of criminal defence services, run by “groups of modestly paid lawyers who are overburdened with cases, and who, with some exceptions, are youngsters seeking experience”.

In 1991, Rick Tessier a public defender in New Orleans, effectively sued himself. Due to lack of state legislature funding, he was being forced to take on three times the recommended number of cases a year. The judge held that the New Orleans public defender system offended the constitutional right to effective counsel and ordered that the state provide sufficient funding to rectify the situation.

“There's no magic to either system,” says Eakeley, who read Law at Oxford University with Bill Clinton and shared a house with him while they were at Yale Law School. “The staff approach on both the criminal and the civil side has proven to be very effective. It's cost effective because it attracts lawyers who don't seek to make the most income. Legal aid lawyers, criminal or civil, are among the lowest paid attorneys in the US. They are much more altruistic, representing those on low incomes out of a sense of calling.”

“But one thing does seem very clear from this reform,” he says. “There will be fewer pounds spent per defendant per case as a result. Money doesn't automatically translate into justice, but you certainly can't have much access to justice without the resources being there.”

Richard McGuinness is one lawyer in the US who favours a fixed contract system. The crime rate in the US is expected to rise sharply over the next 10 to 15 years, he says, “so the efforts that we make now to cut back money given to criminals for legal representation, will affect our finances down the road as a state and a country. It seems as if England is making efforts to get that under control”.

McGuinness, a New Jersey-based criminal defence attorney, takes issue with the point made by Michael Mathews, president of the Law Society of England & Wales, that “a client's ability to choose their own legal representative is a basic human right”. He says: “In the US, we talk about the right to be represented zealously and effectively when you are charged with a crime, but I think we would all stop at saying it is a basic human right to pick your own attorney.”

However, McGuiness sees a weakness in the new system to be adopted by Britain. He picks up a point made by Bob Burke, senior attorney with the US National Legal Aid and Defender Association, who talked about the “politicisation” of criminal defence funding at a Legal Action Group conference last year. “A potential problem could be the possibility of corruption,” he says, echoing Burke's point that many politicians in the US associate funding criminal defence for the poor with being “soft on crime”.

“It's an effort to curb rising costs and hand out efficient justice,” says McGuiness of Britain's efforts to put an Americanised criminal defence service in place. “But perhaps it's not the best justice.”