Public officials respond to intractable problems in a couple of ways. One is to tackle them head on, learning from experience and bringing about what progress is possible. Another is to create a commission that studies them for a couple of years, replicates much of what has already been done and issues a report that is soon forgotten.
Providing lawyers for poor people accused of crimes has been an intractable problem ever since the U.S. Supreme Court held 50 years ago in Gideon v . Wainwright that to ensure fair trials and equal justice the Constitution requires states to provide lawyers to those unable to afford one on their own. U.S. Attorney General Eric Holder Jr. has said that the representation of the poor is in a “state of crisis” and “unworthy” of our legal system.
Since the 50th anniversary of the Gideon decision in March, some well-meaning individuals, such as former Alabama Supreme Court Justice Sue Bell Cobb, and organizations such as the Sixth Amendment Center, have recommended the creation of a bipartisan commission to study the deficiencies in providing lawyers to indigent criminal defendants and propose solutions. The proponents of a commission say the U.S. Department of Justice has asked them to further develop their proposal.
We don’t doubt the sincerity of the advocates of a study commission. However, now is a time for action, not another study by a commission.
The scandalous quality of lawyers for the poor has been studied and documented repeatedly by national, state and local commissions, as well as the media, scholars and organizations. For example, 10 years ago the American Bar Association produced a comprehensive study based on the testimony of expert witnesses from across the country. The National Association of Criminal Defense Lawyers is completing a three-part study of the role private attorneys should play in providing indigent defense. The Constitution Project’s National Right to Counsel Committee offered its extensive recommendations in 2009 and is in the process of updating and expanding them.
PLENTY OF REPORTS
Reports, studies and articles have repeatedly documented a long-­standing crisis. People are spending months in jail after arrest without seeing a lawyer. They are being processed through the courts in assembly-line manner with only brief conversations with lawyers, minutes before they plead guilty and are sentenced. Innocent people are convicted of crimes they did not commit. Children without lawyers are committed to institutions. Violations of the right to a lawyer are occurring every day in courtrooms all over the nation.
The reports and studies have also identified over and over again the causes for these problems — the primary one being the unwillingness of state and local governments to carry out their constitutional obligation to pay to provide lawyers for people they are trying to convict, fine, imprison and execute.
There is simply no longer any debate about the problem, the causes or the solutions. Another commission to study again what we already know is no more needed than a commission to study whether the use of tobacco products has an impact on health. It is time to stop studying the problems and to do something about them.
Over the years, professional associations, courts, public defender commissions and organizations have issued detailed standards, guidelines and “best practices” on every aspect of providing lawyers for poor people accused of crimes. Nothing will be achieved by a new commission recompiling, reorganizing and reissuing yet more standards and guidelines. What is needed today is to put the existing guidelines into practice, state by state, county by county and municipality by municipality.
A small number of adequately funded, independent public defender programs have demonstrated for years that implementing these standards results in high-quality legal representation that ensures fairness and reliable verdicts. Progress is being made in following their example in some places, despite inadequate funding and resistance to change.
Individuals and organizations in communities all over the country are drawing attention to the deficiencies, calling for reform and filing lawsuits to improve representation. New public defender offices have been created in Birmingham, Houston and other places. Judges and legislators have recognized the inadequacy of representation in states like Idaho and Michigan and are making changes.
Lawsuits challenging excessive workloads for public defenders have been successful in Florida, Missouri and other states. One private organization, Gideon’s Promise, is providing first-rate training to lawyers going to public defender offices in the South that do not have training programs.
Holder should spend whatever resources the federal government is willing to commit to the right to a lawyer in support of these and similar efforts in the places where the need is the greatest. He should not create yet another commission that will make the same findings and recommendations that have been made so many times before.
We already know what needs to be done. We only require the political will to do it.
Stephen B. Bright is president and senior counsel of the Southern Center for Human Rights and teaches at Yale Law School and the University of Georgia School of Law. Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund Inc. Virginia Sloan is president of The Constitution Project, a bipartisan legal watchdog group based in Washington.