Gitmo for the Poor: States Leave Impoverished Inmates in Legal Limbo (VICE News: September 24, 2014)

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What do New York and Mississippi have in common? Not much, unless you get arrested and can’t afford a lawyer. In both states, people are routinely stuck in jail without indictment or an attorney for weeks or months on end, a state of legal limbo that resembles the circumstances of prisoners at the Guantanamo Bay detention camp.

According to the American Civil Liberties Union (ACLU), the states aren’t doing enough to oversee and fund public defenders for people who can’t afford private lawyers. Two major lawsuits filed by the ACLU aim to pressure states to ensure that basic constitutional rights to an attorney and a speedy trial aren’t luxuries that are only afforded to the rich.

A class action lawsuit filed Wednesday in Mississippi by the ACLU and the MacArthur Justice Center wants to force the state to set limits on pre-indictment detention.

The two lead plaintiffs in the lawsuit, Octavious Burks and Joshua Bassett, have each been held in the Scott County Detention Center for nearly a year without lawyers or indictments. Bassett, who was picked up on a drug charge, has been in the jail since January. Burks was arrested on allegations of attempted robbery, but he’s been stuck in jail since last November without talking to a lawyer even once.

A similar lawsuit filed by the New York Civil Liberties Union seven years ago is finally headed to trial in Albany on October 7. It will be the first trial in the nation’s history in which a state is being sued for failing to provide adequate public defense services.

In both cases, the ACLU claims state governments have been dropping the ball by leaving the responsibility for establishing indigent defense systems up to counties that often can’t afford to bear the burden.

“Mississippi is one of six states nationwide that don’t provide any state-level support for trial-level indigent defense,” Brandon Buskey, staff attorney at the ACLU’s Criminal Law Reform Project, told VICE News. “It’s all funded by county dollars. In that vacuum of oversight and scarcity of resources, they set their rules as they want to.”

VICE News contacted Mississippi District Attorney Mark Duncan, whose jurisdiction includes Scott County, to ask who is defending Mississippi’s poor if state funds aren’t paying for public defenders. Duncan said he hadn’t yet seen the lawsuit in which he is named, and declined to comment on the case. But he did explain how his jurisdiction handles public defense.

“What we do here in our district, which is four counties, is contract with private lawyers to represent indigent defendants. Other districts do it differently,” Duncan told VICE News. “I think our system works well for us.”

Buskey disagreed. He said that retaining private lawyers on a part-time basis leads to massive gaps in criminal defense.

“Scott County has three grand jury terms per year and three trial terms per year,” Buskey said. “That means they really only devote resources to public defenders during those trial terms. The rest of the time, those public defenders are doing paid work.”

‘The fundamental dynamic that allows people in jail to be locked up with no lawyers for weeks or months is that no one at the state level is paying attention.’

He added: “There’s less incentive to work on a case if you’re not facing imminent trial terms. The amount of money in your contract stays the same whether you are working 100 hours on a case or 10 hours.”

In roughly half of US states, if a defendant isn’t indicted within a certain period of time, the state has to set the person free. But 17 states have no clear time limit, meaning people can be arrested and held in jail for a very long time without being officially indicted on criminal charges.

In New York, which does have strictly mandated time limits on pre-indictment detention periods, the law says a person should be released after a set period (anywhere from a few days to six months depending on the crime) if they haven’t been indicted or issued a trial date.

But because New York only pays 20 percent of the cost of running a public defense system, the ACLU says cash-strapped counties under-hire and overload public defenders. The situation reportedly leads to several problems, including defendants frequently waiving their basic right to a speedy trial.

Corey Stoughton, the lead counsel on the NYCLU lawsuit, told VICE News that criminal prosecutors have resources that vastly outmatch the limited options for public defenders. To fill the void, inmates often attempt to become experts on the law in order to defend themselves.

“It’s not like you automatically get out after 45 days anyway, your lawyer has to file a motion to get you out,” Stoughton said, “What we see is a lot of times guys in jail will file their own motion, because they effectively have to be their own lawyer.”

In a September report on New York’s indigent defense system, the NYCLU found that some public defenders carried overwhelming caseloads that were five times over the recommended maximum. Sometimes the lawyers didn’t even have access to computers.

Lack of state funding is one link between New York and Mississippi’s failing public defense systems, but inconsistency is perhaps an even bigger issue for the states.

“The quality of justice ranges across the state,” Stoughton said of New York’s county-funded public defenders. “The fundamental dynamic that allows people in jail to be locked up with no lawyers for weeks or months is that no one at the state level is paying attention.”

In Mississippi, both Burks and Bassett, the plaintiffs in the ACLU lawsuit, are facing felony charges. Yet they can’t seem to draw the attention of any of those private lawyers the district attorney said were supposed to be available to represent them.

Scott County Sheriff Mike Lee did not respond to an inquiry from VICE News asking why Burks and Bassett haven’t been provided lawyers.

Brenda Bassett, the 64-year-old mother of plaintiff Joshua Bassett, told VICE News the situation made her “very angry.”

“If he’s done wrong then punish him and be done with it,” said Bassett, who lives in a rural area and described herself as “Backwoods Mississippi.”

She said her son cried when he first called her from jail. He had no lawyer, and said he was forced to take a polygraph test where police asked him about past charges that were already cleared.

Bassett said she now calls regularly to check on her son. She said police investigators have been “very kind,” and added that she even prays for them, but she wishes they would give her son a lawyer.

“He said, ‘Mama, I see people come and go out of here every day, and they’re charged with a lot worse than I am,'” Basset said. Bail in the case was set at $100,000, a cost Bassett’s mother said was impossible for him to afford.

“All he has is the clothes on his back,” Bassett said. “They need to do something and let my son go.”

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