I first saw the idea raised by John Kindley in this comment at Simple Justice: free criminal-defense lawyers for everyone, not just the indigent. I replied there that society should be willing to bear the full cost of prosecuting accused law-breakers, including the cost of due process.
Norm Pattis came up with the same idea:
It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren’t defendants?
Norm has started a blog called Lawyers For All to help spread the idea. There he asks,
Why aren’t all Americans entitled as a matter of right to the services of appointed criminal counsel, together with access to the services of experts and investigators equal in caliber and expense to those serving the prosecution? Isn’t it the case that the public defender, able as it is to provide representation to the poor, is really but a first step in fulfilling the dream of equal justice for all?
Norm’s premise—that someone with the resources to only hire a lawyer cannot get the help of experts—is not entirely correct. Ake v. Oklahoma says that the State has to provide the indigent defendant with at least “the basic tools” to present his defense; in Texas, at least, Ake applies to indigent defendants with appointed counsel, so that if, after paying counsel, the accused has no money left for the basic tools, he is still entitled to the appointment of experts for his defense.
Still, Norm’s not wrong about the asymmetry inherent, like violence, in the system. The difference between “the basic tools” and what is available to the State still creates that asymmetry. For example:
[C]onsider the case of man accused of molesting a child a decade or more ago. The state will confront the man not just with the testimony of the alleged victim, but with experts on forensic interviewing, delayed disclosure of traumatic memories, incremental disclosure of crimes, and such other experts as it will.
My issue with the criminal justice system is a different one than asymmetry.
The system now requires society to pay for due process only for those who are indigent. Those who are not indigent are forced to pay for their own due process (in the form of a lawyer). Those with plenty of money do fine, and the working poor get screwed. But they are all presumed innocent.
Why should the (presumptively) innocent, whether wealthy or working-poor, have to dig into their own pockets to defend against charges that are (presumptively) false?