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@@@ In 1961, Clarence Gideon allegedly broke into a Florida pool hall and its vending machines. Gideon, who was indigent, requested a defense attorney, was refused and was convicted. In 1963, a unanimous Supreme Court overturned his conviction, holding that the Constitution鈥檚 Sixth Amendment (鈥淚n all criminal prosecutions, the accused shall enjoy the right 鈥?to have the assistance of counsel for his defense鈥? entitles indigent defendants facing serious criminal charges to a government-provided defense attorney. Congress responded by providing for 鈥渞epresentation of defendants 鈥?who are <a href=http://www.alportico.net/prodotti/christianlouboutin-sale.jkmsw.php>Christian Louboutin Shoes</a> financially unable to obtain an adequate defense.鈥?Last year, David E. Patton, executive director of Federal Defenders of New York, published 鈥淔ederal Public Defense in an Age of Inquisition鈥?(Yale Law Journal), saying: 鈥淲ould an indigent federal defendant prefer to be prosecuted in the system as it existed in 1963 with an ill-equipped, unpaid lawyer (or none at all), or would he prefer today鈥檚 system? Although the answer surely depends on many factors, I conclude that in far too many scenarios, the rational defendant would choose 1963.鈥? Which is dismaying, if true. Is it? Patton says that federal criminal law has expanded recklessly and become too punitive. Prosecutors use severity (especially mandatory minimum sentences), high rates of pretrial detention (doubled since 1963), and long detention (the length has <a href=http://capstone.edu.sg/images/gucciusaonlineoutlet.php>gucci outlet</a> quintupled since 1963) to produce excessive plea bargaining. This limits defense lawyers鈥?abilities to test evidence and challenge allegations before a neutral arbiter 鈥?a judge or jury. The adversarial process, the foundation of our criminal justice system, has become an inquisitorial process that fails to produce fair trials. Or even trials. 鈥淚n 1963, nearly 15 percent of all federal defendants went to trial; in 2010, the figure was <a href=http://www.museosangennaro.com/Public/anel.php> Christian Louboutin Shoes Outlet</a> 2.7 percent.鈥?All this, exacerbated by funding disparities between prosecutors and publicly provided defense lawyers, is one reason why America has the world鈥檚 highest incarceration rate. 鈥淚n most cases,鈥?Patton says, myriad factors push defendants toward 鈥渇olding without a fight.鈥? Well. Where you stand depends on where you sit, and it disparages neither Patton鈥檚 arguments nor the earnestness with which he advances them to note that he sits at the defense table. J. Harvie Wilkinson III sits on a bench 鈥?the U.S. Court of Appeals for the 4th Circuit. His essay 鈥淚n Defense of American Criminal Justice鈥?(Vanderbilt Law Review) rebuts what he considers an unjust 鈥渄in of diatribe鈥?against the way American criminal justice makes necessarily flawed but necessary trade-offs in the allocation of scarce resources in support of competing values.
