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Protecting the Bill of Rights in Utah since 1958

You may have the RIGHT to an attorney...but in Utah, does it matter?

08 June 2015 Published in The ACLU of Utah Activist

Movie still philadelphia 20131218 1803148707"Any adult Utahn who watched any television growing up probably knows these words by heart: ‘You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.’"

"…(T)he Sixth Amendment's right to counsel was meant to ensure fundamental fairness in criminal proceedings. If an accused cannot pay for a lawyer…fairness and the Constitution demand that the state government provide one. Later Supreme Court cases held that state-provided attorneys must be effective, since ineffective counsel is the same as no counsel. ...The need for effective, publicly funded criminal defense in Utah is acute."

Our executive director Karen McCreary and legal director John Mejia wrote these words back in 2013, in an Op-Ed for the Salt Lake Tribune. They wrote the Op-Ed on the 50th anniversary of the Gideon v. Wainwright case, which gave actual weight to the Sixth Amendment’s guarantee to an attorney – regardless of their ability to pay. It was a landmark ruling: you didn't need to be rich to deserve justice.

The Op-Ed also drew attention to the fact that Utah – and, to be fair, many other states – have absolutely failed to fulfill this guarantee. The legal representation available to Utahns through the public defender system does not give people the fighting chance they deserve when they are at their most vulnerable, facing all the power of the state.

Let's be clear, public defenders are not just for people who are VERY poor and charged with a crime. More than 80% of individuals who are charged with a criminal defense qualify as "indigent," triggering their ability to access a public defense attorney.

That means MOST of us, if we found ourselves called into court to defend ourselves against charges by the government, would need "an attorney provided for us."

 Unfortunately, in Utah, we would be provided with a public defender who is not paid enough, expected to carry a caseload far in excess of American Bar Association recommendations, may maintain inappropriately non-adversarial relationships with the prosecution, might not have time to do much more than strongly recommend we plead guilty (regardless of our actual guilt)...I could go on.

The ACLU of Utah has been trying to get the state to do something about our sorry state of public defense for nearly eight years – and the state has been failing to fulfill its constitutional obligations for more than 50.

Finally, two years after the Op-Ed above was published, it finally looks like something might happen (though we’ve learned not to get our hopes up).  

The Sixth Amendment Center has been slowly gathering information about the workings of Utah’s public defender system over the past two years, and plans to issue a report to the state about its findings sometime this summer. Or fall (Estimated Time of Arrival for the report is a bit hazy, and has changed many times in the past twelve months).

We fully anticipate that the Center’s report will say that Utah’s system is underfunded, with insufficient oversight, and that defendants are not getting the legal support promised to them by our state constitution.

That’s because, um, the ACLU of Utah already issued a report - back in 2011 - detailing as much. Failing Gideon, researched and written in partnership with Prof. Emily Chiang and law students at the S.J. Quinney College of Law, substantiated complaints we’d received from all over the state (from both attorneys and defendants) for years.

It’s beyond time that the state of Utah took responsibility for the sorry state of our public defense system. Every year, more and more people are swept into the criminal justice system through unconstitutional law enforcement tactics, prosecutorial overreach, the fines and fees strangling low-income communities, and even through the increased presence of cops in schools.

The government has a LOT of power to drag us into court - and so many avenues to do so. The very least we should be able to expect - by virtue of the constitution, but also because it is only FAIR - is to have a strong legal advocate by our side when we face the resources and power of the state, regardless of how wealthy we are.

We’ll let you know as soon as the Sixth Amendment Center’s report becomes available – and we’ll let you know, as well, the actions we will be taking to ensure that, this time, CHANGE HAPPENS.