Font Size:

'GIDEON' AT 50

Gideon's promise still unfulfilled

By Jenna Greene Contact All Articles 

The National Law Journal

March 18, 2013

National Association of Criminal Defense Lawyers' Steven Benjamin
Diego M. Radzinschi/NLJ

Southern Center for Human Rights' Stephen B. Bright

Former Attorney General Edwin Meese III
Photo: Diego M. Radzinschi / NLJ

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entitled to counsel at bail hearings — but rather than coming up with $28 million to pay for it, the state Legislature repealed the law instead.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.

A browser or device that allows javascript is required to view this content.

Subscribe to The National Law Journal

TOP JOBS