For Clarence Earl Gideon, who spent much of his early life homeless and his entire life in poverty, the criminal theft prosecution that made him a household name was just one of many legal challenges. A low-wage worker, Gideon undoubtedly experienced some of the exploitation typical of that job sector. In his autobiography, Gideon said that the low wages that he received as an electrician forced him to rely on gambling proceeds to maintain his marginal existence. On the family side, his six children were taken by child welfare authorities.
The case that bears Gideon’s name helped resolve his criminal law issues. When Gideon was retried with a government-appointed counsel following the U.S. Supreme Court’s ruling, he was acquitted. But despite these protections on the criminal side, when low-income individuals like Gideon face civil legal challenges such as housing, family and income insecurity, or in some cases even deportation, affordable legal assistance is seldom available. As a matter of statute or under their own constitutions, some states provide legal representation in some cases, particularly those involving termination of parental rights. While it is possible to discern a slow, incremental expansion of the civil right to counsel on the state level, the law in this area remains a bare patchwork.
In a series of cases, most recently Turner v. Rogers in 2011, the Supreme Court has set federal guidelines but provided no constitutional mandates to states requiring appointed counsel, even in civil cases where liberty is at issue. Yet the federal government does have a clear leadership role to play, particularly in two critical areas involving the civil right to counsel: the intersection of access to justice and civil rights, and immigration removal proceedings.
First, the lack of a right to civil counsel has disturbing racial dimensions that affect both individuals and communities and that demand more federal attention as part of the national government’s historic leadership on civil rights matters. Because people of color are disproportionately poor in America, they are disproportionately unable to afford counsel as they face legal issues arising from poverty, such as evictions and denial of government benefits. There is considerable evidence that the absence of a right to appointed counsel in housing eviction cases has a disproportionate impact on racial minorities, particularly in certain communities. One recent study in Milwaukee found that women from primarily black neighborhoods made up only 9.6 percent of the city’s population but accounted for 30 percent of evicted tenants. Similarly, the Center for Responsible Lending reports that nearly 8 percent of both African-Americans and Latinos have lost their homes to foreclosures, as compared with 4.5 percent of whites. Yet few, if any, jurisdictions provide legal assistance to low-income individuals facing eviction.
The international community has noted these racial disparities. The United States ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994, obligating it to meet the highest standards of procedural fairness and racial equality. But reviewing U.S. practices in 2008, the U.N. committee that monitors CERD implementation expressed concern about the absence of legal assistance and recommended that, to comply with its obligations, the United States allocate "sufficient resources to ensure legal representation to indigent persons belonging to racial, ethnic and national minorities in civil proceedings, with particular regard to those proceedings where basic human needs — such as housing, health care and child custody — are at stake." Although bar groups across the country have made efforts to expand access to pro bono counsel in housing-related matters, the federal government should begin viewing this as a serious civil rights issue and take a leadership role in ensuring access to legal assistance, particularly in those communities most affected.
Second, the federal government itself sets the rules for appointed counsel in immigration removal proceedings. These are adversarial proceedings in which the individual’s continued presence in the United States is at stake, potentially affecting his or her family relationships, livelihood and virtually every aspect of the individual’s life. In the absence of counsel, relevant facts are often not elicited during the proceeding, resulting in erroneous deportation of citizens or others who have valid claims to remain in the country. The consequences for these individuals can be devastating or even fatal depending on the circumstances of their removal. Many scholars and advocates have argued that the absence of a right to counsel in these proceedings violates the values, if not the letter, of G ideon v. Wainwright. Even stronger arguments can be made that subgroups of immigrants with close ties to the United States, such as lawful permanent residents facing deportation, should be accorded appointed counsel because of the interests at stake. The federal government would take a significant step toward meeting its international human rights obligations if it expanded the right to appointed counsel for this group of federal litigants.
Of course, Gideon did not face deportation, and he had the advantage of being a white man in the South where his felony case was tried. But the case initiated by Gideon transcends its own specifics. It elevates the enduring values of equality, fairness and access to courts above the counterweights of administrative challenges and costs. Gideon is recognized the world over as representing the best of American jurisprudence. How appropriate it would be for the Obama administration to use the occasion of Gideon v. Wainwright‘s 50th anniversary to address the gaps in civil representation that undermine equality and fairness for so many low-income people.
Martha F. Davis is professor of law and co-director of the Program on Human Rights and the Global Economy at Northeastern University School of Law.