“If You Cannot Afford A Lawyer”

We’re going to have a few guest posts this week. I’ve asked a couple of folks who approached me about issues to write it up themselves so you can see the argument framed in their own words.  First up is the following post by Sara Totonchi, the Executive Director for the Southern Center for Human Rights:

“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” This statement is uttered so often in movies, television crime dramas and detective stories you’d be hard pressed to find someone who is unable to recite some portion of the rights guaranteed to us under the Miranda warning. The right to have an attorney represent you is such a fundamental tenet of the American justice system that it is included in the warning read at every arrest.

Over the past decade, Georgia has made significant strides in our ability to serve as a model for a fair and equitable justice system. The passage of the 2003 Indigent Defense Act and the creation of Georgia’s statewide public defender system helped ensure that every citizen accused of a crime had equal access to competent legal counsel. It was a system that at the time, positioned our state as an example that other states should strive to emulate.

However, though the Act provided much welcomed structural changes, its funding structure still needs work. The public defender system has never been funded at an adequate level. With this funding deficiency, we risk returning to a time when Georgia served not as a model of fairness and equality but as a shameful example of a neglected and broken down system that is vulnerable to litigation.

After passing the Indigent Defense Act, in 2004 the General Assembly created the Indigent Defense Fund by enacting a $15 civil filing fee and surcharges on criminal fines and bonds. The problem is that like many other fine-and-fee-based trust funds, including the teen driving education fund, the solid and hazardous waste funds, and the peace officer and prosecutor training fund, the monies generated have not been allocated to the purposes for which they were created.

To correct this problem, House Judiciary NonCivil Chairman Rich Golick, with strong bipartisan support, has proposed a constitutional amendment with enabling legislation that will be voted on by the House of Representatives on Monday. If adopted by the General Assembly and approved by voters in November, House Resolution 977 and House Bill 648 will guarantee that all fees collected for indigent defense can only be used for indigent defense.

It is important to realize that this is not a tax. It simply specifies the money already being collected by fines and fees created for funding indigent defense actually go to the state agency responsible for indigent defense.

When looking for a cautionary tale warning against the return to Georgia’s old broken and underfunded system, we need look no further than the case of Samuel Moore. In 2001, before Georgia’s structural reforms were implemented, Mr. Moore spent 13 months in the Crisp County jail on a loitering charge without access to legal counsel. The last four of these thirteen months he remained in jail despite the fact that all charges against him had been dismissed. He was never seen by a lawyer, so no one bothered to tell him he could go home.

Mr. Moore’s plight was not an isolated incident but one case among many that occurred during a period of neglect and mistakes under the Georgia’s old public defense system, which left defendants without an attorney or with shockingly inadequate counsel. It was stories like Mr. Moore’s and many others that compelled the Georgia General Assembly to create the statewide public defender system.

Today, Georgia’s justice system is at a crossroads. Without the level playing field created by effective legal counsel for the prosecution and the defense, our adversarial justice system breaks down and we simply cannot uphold the principles of fairness and equality that define our nation.

In 2003, lawmakers made the right decision in reforming our public defense system to make sure that it would be equitable for all. It is critical now, a decade later, we finish what we started and fix the public defender system’s funding issues by endorsing HR 977 and HB 648.


Sara Totonchi is the Executive Director of the Southern Center for Human Rights, an Atlanta-based nonprofit law firm.


  1. saltycracker says:

    I would agree that designated monies ought to go where intended. The greater issue may be this boosts a payroll and doesn’t address the issues of a broken process or laws that need overhauling.

    • Mid Georgia Retiree says:

      I’m not in favor of a constitutional amendment unless it addresses the issues of all designated monies going to intended destinations.

      • Calypso says:

        You are right, but why does this need to be a constitutional amendment in the first place?

        • seenbetrdayz says:

          My thoughts exactly. So we pass this law to make sure that a previous law is followed? Then what happens?

          Why don’t we just skewer the guys/gals who didn’t use the money for what it was supposed to be used for, and leave them out in the rain for everyone driving by to see what happens when you misappropriate funding?

          Oh, I know the answer, and it’s called accountability. And, there is none.

  2. CobbGOPer says:

    “Oh, I know the answer, and it’s called accountability. And, there is none.”

    Now you’re understanding how government works in Georgia.

  3. Dave Bearse says:

    The Crisp County case cited is beyond the issue of a lack of funding for representation. It’s an indictment of the mismanagement of the Crsip County justice system of that time. No funds for representation, an indifferent Prosecutor’s Office, yet a Sherriffs Office that evidently has so much money it need not concern itself with the numbers of people in detention awaiting trial.

  4. JediJD says:

    We are actually feeling the effects of the Law of Unintended Consequences. We have dramatically increased the scope of crimes and the severity of punishment (just a casual example, when $500 was the original threshold for a felony, $500 was a LOT of money). We have increased punishments and offenders…because it makes us feel good and gives a completely false sense of security to wear with our mantle of moral supremacy. These increases have come at at time when we have also increased the pool from which the most common offenders evolve…the economically disenfranchised. We are now looking at having to pay for the privilege of grinding up entire classes of people and preventing their participation in our society. There won’t be a solution but there will be interesting public theater.

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