Once public defenders are maxed out, the court said, it was up to trial court judges to "triage" their dockets, focusing on the most serious offenses, "even if it means that other categories of cases are continued or delayed.…It also may result in the release of some offenders."
Georgetown University Law Center professor Stephen Hanlon, who represented the Missouri public defender's office, said that Gideon's "50-year deal…of the illusion of counsel is over. We can't do that anymore."
Except he also admits the situation is not so simple. The Missouri Legislature is pushing back, and there's more litigation ahead. "It's like whack-a-mole," he said. The Missouri court decision is not unlike the notion of reclassification the idea that certain offenses like driving with a suspended license should be reclassified as civil rather than criminal offenses, freeing up resources across the criminal justice spectrum.
"Not everyone needs to be prosecuted. Not everyone needs to be incarcerated," said Georgetown law professor Abbe Smith, who is the director of the law school's Criminal Defense and Prisoner Advocacy Clinic.
About 2.3 million people are currently in prison, compared with 200,000 when Gideon was decided. "There are so many more crimes now, and so many more consequences.…Could we fund Gideon properly? Yes, if we didn't build so many prisons instead," she said. David LaBahn, who is president of the Association of Prosecuting Attorneys, agreed that driving with a suspended license might not warrant jail time, but he questioned whether other nonviolent offenses such as those involving drugs should become civil matters. "That signals to the community, 'Go ahead and start dealing, it's no big deal,' " he said. "Is that the right direction?"
EVENING THE SIDES
To LaBahn, the justice system is like a game of tennis: It works best when both sides are evenly matched. "For the interests of justice to work, we need balance. We need staffed, trained, competent defenders…and on the side of the prosecutors, we need the same."
In North Carolina, the state has taken steps to even the sides, mandating that prosecutors and public defenders receive the same pay, said Rhoda Billings, a former justice of the North Carolina Supreme Court who spoke at the Heritage Foundation panel last week. She added, however, that parity in pay "doesn't mean there's parity in resources. We don't have public defenders everywhere, and even public defender offices are not staffed as highly."
Another approach to reform is about to begin in Comal County, Texas, where indigent defendants will get to choose their own lawyers rather than having them appointed. "It's the first experiment of its type in this country," said James Bethke, executive director of the Texas Indigent Defense Commission. "Let's see if the free market can help improve the delivery of indigent defense services."
Nationwide, the bulk of criminal cases are misdemeanors, and critics have said that's where indigent legal representation is most inadequate. But amid all the teeth-gnashing, it's easy to forget that, even now, sometimes the system does work the way it's supposed to.
Consider Judge Robert Heffron Jr., a former prosecutor who earlier this month was presiding over a ho-hum criminal docket in Hyattsville, Md. A woman facing 10 years in prison was before him, but due to a mix-up, her public defender was absent.
It was a small case and small dilemma, but the way Heffron handled it was telling. He could have passed her case to another public defender who happened to be in court but had never met the woman, and proceed directly to trial. That's what the prosecution wanted, since three witnesses had showed up ready to testify.