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Gideon's promise still unfulfilled
The National Law Journal
Fifty years ago on March 18, 1963, the U.S. Supreme Court issued its landmark decision Gideon v. Wainwright, establishing that people accused of crimes have the right to a lawyer regardless of their ability to pay.
The ruling fundamentally transformed the criminal justice system in America. But to lawyers who represent the poor, there's little cause for celebration. "Sackcloth and ashes" is a more apt commemoration, said Stephen Bright, president of the Southern Center for Human Rights, which represents people facing the death penalty and advocates for indigent defense reform. Within the criminal defense bar, there is widespread agreement that Gideon's lofty promise has gone unfulfilled. The high court in a unanimous decision found that "lawyers in criminal courts are necessities, not luxuries." If a person facing a felony charge is too poor to hire a lawyer, the court ruled, the government is obligated to provide one for free. Subsequent decisions expanded the right to juvenile proceedings and certain misdemeanors.
To state and local governments, the ruling has amounted to a massive unfunded mandate, one that they have struggled with and sometimes resisted ever since. Take Wisconsin, where private lawyers who are hired to represent indigent defendants are paid $40 an hour unchanged since 1978. Or Louisville, Ky., where public defenders are each assigned nearly 500 cases a year. Or Maryland, where a state court of appeals last year ruled defendants are entitled to counsel at bail hearings but rather than coming up with $28 million to pay for it, the state Legislature repealed the law instead.
"We've failed tragically to realize [Gideon's] promise because of the unwillingness of state and local governments to adequately fund the defense function," said Steven Benjamin, president of the National Association of Criminal Defense Lawyers. "The system is broken. It can't be relied upon to protect innocent people from conviction."
About 80 percent of the accused rely on court-appointed counsel. Overwhelmed with cases and starved for resources, some public defenders have little choice in representing their clients but to "meet 'em and plead 'em," as the saying goes, spending just a few moments talking with a defendant before entering a plea. "People are just processed through the courts. There are no professional legal services provided," said Bright, who said that guilty pleas account for the vast majority of criminal convictions. Too often, a public defender is reduced to being little more than a messenger, conveying the prosecutor's plea offer but unable to "argue [because] you don't know the facts or anything about the background of the client," he said.
He recounts the plaintive query from one defendant: "What would happen to my case if I had a real lawyer?"
In theory, the way to fix the system is simple: "A massive infusion of funds," said Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School. "But it's equally clear that, in an era of sequester, no one is getting a massive infusion of funds." Besides, he noted, it's "politically popular to pay the salaries of the police and prosecutors," but much less so to fund indigent defense. "There's a deep structural problem here."
To be sure, the news is not all bleak. Litigation and legislative changes have brought about key reforms in some areas. Other states in recent years have created independent commissions to oversee indigent defense and, increasingly, advocates are suggesting ways to improve the system at minimal cost.
"We still have a ways to go as a society in providing what most of us would feel is adequate counsel," said former Attorney General Edwin Meese III, speaking last week on a panel about Gideon at the Heritage Foundation in Washington. "Funding, as in all governmental activities, is a part of it, but mostly I think it's the necessity of a continuing will for the legal profession, for those who are judges, legislators and others to understand the importance of the Gideon case. And that is, the idea of the right to counsel as being essential to a fair trial."
'A CRISIS POINT'
Daniel Goyette is the chief public defender in the Louisville Metro Public Defender's Office, where new lawyers earn $38,770 a year. He's on the front lines of the battle to provide indigent legal services, and described the system as "at a crisis point."
Currently in the midst of capital post-conviction proceedings, he didn't have time for an interview, but instead sent detailed answers to questions in an email time-stamped 5:01 a.m. Lawyers in his office carry a staggering caseload nearly 500 cases a year well above long-standing national guidelines of no more than 150 felonies per lawyer per year.
"Despite that caseload, we have achieved great success and a track record at trial that equals or exceeds the results of the private bar because our lawyers are well-trained, highly motivated and committed, and they put in long hours and work exceptionally hard," Goyette wrote. "However, the personal toll that sort of dedication and sacrifice takes on public defenders is significant in human terms, and it often comes at the expense of their family and a so-called balanced life."
In Kentucky's western neighbor Missouri, the state Supreme Court in July 2012 issued a decision that proponents hope will reduce the workload of public defenders to more manageable levels, and perhaps even herald a new national model. The court in Missouri Public Defender Commission v. Waters ruled that public defenders swamped with work could refuse to accept a judge's appointment in a new case and, indeed, had an ethical obligation to do so, if it meant they couldn't do the job properly.
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.
But Heffron said no. He apologized to the witnesses but said, "It's not fair to her to go forward…and it's not fair [to the public defender] professionally." In the old days, Heffron said, he'd have ordered defense counsel to proceed. "But they insist on a much more professional level of practice now," he said. Instead, he continued the case, saying, "I'd rather get it done correctly, and let her attorney get involved."
Jenna Greene can be contacted at firstname.lastname@example.org.