Our country was founded on the promise of “liberty and justice for all.” As the Supreme Court has recognized, that promise contains the right for all citizens to have adequate representation by counsel, and the right to a quick and fair trial. Such promises are illusory for the indigent, however, without standards that set rules as to when and how the accused are to receive adequate representation.
In 1970s, the Georgia Criminal Justice Council, on which I served, found that too often, Georgia did not deliver on the promise of justice due to that lack of standards. For example, without a rule establishing a timeline for when an indigent defendant must have a lawyer assigned, many defendants were in effect denied their guaranteed right to counsel because lawyers were not appointed on a timely basis. In the 1990s, as president of the American Bar Association, I found that Georgia was behind most states in guaranteeing the right to counsel due to the lack of standards.
It was a great day for justice when Gov. Sonny Perdue signed Georgia’s landmark indigent defense legislation into law in 2003. The legislation’s establishment of performance standards — including creation of the Georgia Public Defender Standards Council — was a bipartisan affirmation of Georgia’s commitment to all citizens of the right to be represented by a lawyer in criminal cases.
I was a member of the Georgia Supreme Court Commission on Indigent Defense, which made recommendations that became the basis for the 2003 legislation, and it was gratifying to see the judicial, legislative and executive branches stand up for the rights of all Georgians accused of crimes to have counsel.
It is deeply concerning that House Bill 328, which has been characterized as an indigent defense “clean-up” bill now being considered by the General Assembly, would, if enacted, remove from the 2003 indigent defense law most references to standards, and apparently make current standards discretionary only.
That would be a major step backward. Citizen rights provided in the state and federal constitutions are not discretionary. There are no real rights without mandatory rules and standards that assure delivery of the rights. Such a change would take away the main legal yardstick assuring our compliance with constitutional rights.
Initially, the bill eliminated the standard that a defendant receive public-defender services within an established time, and the requirement that defenders have training and experience sufficient for the cases assigned. While the bill has been changed to not directly eliminate the standards, they and other important standards would become “discretionary.”
The elimination of standards from Georgia’s indigent defense system is both symbolically and substantively significant. Discretionary, non-mandatory standards are illusory. And as demonstrated by Georgia’s long and sad right-to-counsel history, there are no rights without standards.
While I applaud the General Assembly’s recognition of the need to support our state’s indigent defense system and an increase in investment in our public defender system, no additional resources or legal refinements will be sufficient to ensure adequate representation without meaningful performance standards. “Clean-up” provisions that “clean out” constitutional standards must not be allowed to happen.
R. William "Bill" Ide is a Partner in the Atlanta office of McKenna Long & Aldridge, an international law firm.
