United States District Judge Marvin Shoob
has ruled that the failure of Fulton County, Georgia, which includes Atlanta, to provide lawyers promptly to people charged with minor offenses "constitutes a clear denial of these individuals' constitutional right to counsel" and ordered the county to provide lawyers to people within 72 hours of arrest.
The order came in the case of Foster v. Fulton County in which Shoob has for the last two years ordered various remedies for denial of health care and to end overcrowding at the Fulton County Jail. In the order, Judge Shoob stated:
Not only does the current treatment of individuals charged with minor offenses contribute to the serious overcrowding problem at the jail, it also constitutes a clear denial of these individuals' constitutional right to counsel. . . . The Solicitor General contends that "counsel has always been appointed in Fulton County in cases where a defendant is sentenced to jail time." This argument apparently refers to Fulton County's practice of appointing counsel at the time of arraignment. At this point, however, it is too late for an attorney to provide any real representation, since his client has likely already served more time than he or she would if found guilty. Under these circumstances, an appointed lawyer provides no professional assistance but merely serves the clerical function of processing people through court. Appointing counsel to handle a plea at this point is, as plaintiffs' counsel puts it, "a meaningless and hollow gesture." The Constitution requires more than this.
Accordingly, the Court orders defendants to immediately implement a program to provide counsel with 72 hours of arrest to all persons accused of minor offenses who cannot make bail.
Judge Shoob also ordered the county to provide people arrested with hearings within 72 hours of arrest.
The Foster case was brought in 1999 by the Southern Center for Human Rights on behalf of people who were HIV-positive who were being denied medical care at the Jail. One month ago, the Center sent a letter to Fulton County officials warning that the failure to provide lawyers to people accused of minor crimes was contributing to jail overcrowding as well as violating the right of those people to a lawyer.
In the letter, Center Director Stephen B. Bright pointed out that lawyers are often not appointed for people who cannot afford an attorney until they have spent far longer in jail than any sentence they would receive.
The Center found that people have been spending weeks or months in jail on charges of fare evasion, public drunkenness, smoking in public, trespass and other petty charges that would be punished by a small fine or a few days in jail. The Center also found that some people become "lost" in the system, and remain in jail while their cases are neglected.
For example, one person was detained for 16 days for smoking in public at a cost to Fulton County of $720 ($45 per day). Barbara Anholt spent 68 days in jail for public drunkenness at a cost to the county of over $3,000. Bobby Nelson Richard was in jail for 83 days for public drunkenness at a cost to the county of $3,735.
A random sample by the Center of 57 detainees being held only on State Court charges revealed that they spend a total of 1,519 days in jail at a cost to Fulton County of $68,355.
"Fairness requires that a person be assigned a lawyer before he or she is punished," Bright said. "This Court has been like Alice in Wonderland -- people serve their sentences before they are brought to court to see whether they are guilty or innocent."
He pointed out that being assigned a lawyer after spending three months in jail for a crime that would be punished by probation, a fine or a few days in jail comes far too late for counsel to serve any purpose. It is too late to mount a defense
-- guilt or innocence has become irrelevant because those accused have already been punished for the crimes charged whether they committed them or not.