If there’s anything that has publicly defined the billionaires Charles and David Koch it’s their mission to make the government smaller. Funneling hundreds of millions of dollars into a network of nonprofits, the brothers have made their name not just for their contributions to electing Republican candidates, but also by obliterating government services and initiatives even at the most local level. That’s why it’s a remarkable revelation that those very same brothers are funding an initiative to provide more lawyers to the poor.
A press release from the National Association for Criminal Defense announced that the brothers had committed to a “major grant” to help strengthen criminal defense for the indigent. In a statement to the New York Times, Charles G. Koch said the grant was a way “to make the Sixth Amendment’s guarantee of an individual’s right to counsel a reality for all Americans, especially those who are the most disadvantaged in our society.”
Indeed the Sixth Amendment does guarantee the right to a lawyer, and in the U.S. Supreme Court’s landmark 1963 case Gideon v. Wainright, it held that this right meant the poor were guaranteed a lawyer. In the years since, poor individuals have been afforded the illusion of a lawyer — sometimes only delivered after bail has been set and they are left to sit in jail for months until their trial. Sometimes meaning they see their lawyer for a few minutes before they are coaxed into taking a plea deal, rendering lawyers what courts have called “mere conduits for plea offers.” Sometimes it means lawyers never have the crucial conversations with their clients about exonerating evidence, let alone gather evidence or recruit expert witnesses who might easily prove that client’s innocence.
This is not for a lack of compassion on the part of many defense lawyers. It’s because there just aren’t enough resources, and thus not enough lawyers, to go around. In the scheme of the criminal defense system, the right to counsel is the one that undergirds all the others. Years before U.S. Attorney General Eric Holder became outspoken on the issues of mass incarceration and other flaws in the criminal justice system, he expressed grave concern about the state of U.S. indigent defense, and created a new freestanding commission in 2010 to address the issue, headed by powerhouse Harvard scholar Laurence Tribe. “Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor,” Holder said.
The Koch brothers have invested in other criminal justice reform initiatives over the past several years, as part of a growing recognition on the right to that the United States has far too many people in jail. This revelation is in part motivated by a sense of justice. But it also jibes with the libertarian notion of smaller government. An agenda focused on decriminalizing moral crimes and making prisons smaller to save money is easy to square with the Koch brothers’ dislike of government spending. Providing lawyers to the poor, by contrast, costs money.
When Florida’s public defenders were so overloaded in 2008 that the office threatened to start rejecting cases, Florida Republican State Sen. Victor Crist, who was chair of the Justice appropriations committee, alleged public defenders were being “greedy” by demanding more resources and trying to “circumvent the legislature and force the budget issue into the courts” ABC News reported at the time. (Last May, Florida’s high court nonetheless sided with public defenders in at least allowing overwhelmed public defenders to reject cases they are assigned.).
In many other states and at the federal level, across-the-board budget cuts have also been the basis for denying public defender offices’ budget requests. Legislators claim they don’t want to single out the public defenders for special treatment as they slash budgets. When sequestration hit the federal budget, public defenders were hit six times harder than federal prosecutors, who are funded by a different agency that receives more financial support, as defendants’ trials were delayed for months and some defenders even fired themselves.
But as David A. Simon pointed out a few years ago in the Harvard Civil Rights-Civil Liberties Law Review, public defenders do not receive an equal proportion of the budget to begin with. He found that out of the $146.5 billion spent annually on criminal justice, more than half goes to police and prosecutors who investigate cases against defendants, while just 2 to 3 percent pay for public defense.
Several Republicans have also exhibited a general hostility toward those who defend criminals in elections, painting their constitutionally guaranteed defense of the accused as “defending dangerous criminals” in campaign ads. And of course, providing lawyers to the poor in civil rather than criminal cases remains a deeply partisan issue.
There are several major conservative groups that are at the forefront of reforming the criminal justice system. They want to decriminalize moral offenses, lower sentences, and decrease jail populations. They also recognize deficient public defender systems as an injustice. At last year’s Conservative Political Action conference, a call for bolstering the indigent defense system as a “fairness and moral issue” received nods and even “amens” from the crowd. But as Washington Monthly has pointed out, many conservative groups have more market-based ideas for improving indigent defense as an alternative to funding government offices, including voucher systems that allow defendants to pick their own lawyers and reducing the need for lawyers through decriminalization of offenses and mediation programs.
Kochs’ donation is devoted to studying models for public defense and replicating them elsewhere, suggesting they may indeed be funding the expansion of public defender systems. In fact, when Holder made the case for stronger public defense in 2010, he flagged it as an economic issue that is “economically unsustainable.” “When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals,” he said. “Poor systems of defense do not make economic sense.”