More than 50 years ago, Clarence Earl Gideon stood in a Florida courtroom accused of felony burglary and asked the court to appoint an attorney to represent him. Under the U.S. Supreme Court’s 1942 decision in Betts v. Brady, state criminal defendants had no Sixth Amendment right to counsel. States only had to appoint attorneys for indigent defendants if there were special circumstances in a case that required counsel to ensure fundamental fairness. Gideon was not facing the death penalty; he was not illiterate or mentally impaired; and his case was not particularly complex. The Florida courts denied his request for counsel, and he was convicted despite his protestations of innocence.
But Gideon was lucky. Unbeknownst to him, a number of Supreme Court justices had doubts about whether Betts should remain good law. The case-by-case analysis that the special circumstances test required was difficult to superintend, and the Warren Court was keenly aware that unreviewable discretion in state criminal justice systems led to rampant inequality and unfairness.
In 1963, the Supreme Court overruled Betts and issued its famous decision in Gideon v. Wainwright, holding that all indigent felony defendants have a fundamental Sixth Amendment right to the assistance of counsel. It was an "obvious truth," the court wrote, that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."
On the heels of Gideon, Congress passed the Criminal Justice Act of 1964 and established an indigent defense delivery system for the federal courts. Many of the states followed suit, and our public defender system was born. The Supreme Court later extended its holding in Gideon to give indigent misdemeanor clients who face jail sentences a constitutional right to counsel. People hailed Gideon as a landmark case that would forever change our criminal justice system. Yet here we stand, 50 years later, and the promise of Gideon v. Wainwright remains largely unfulfilled.
PROBLEMS WITH INDIGENT DEFENSE
According to a recent American Bar Association study, "thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation." Indigent defendants often sit in jails for weeks or even months waiting to meet an attorney. One Mississippi woman accused of shoplifting spent 11 months in jail waiting for the court to appoint counsel. Another woman charged with stealing $200 from a slot machine waited eight months before she got a lawyer. In many jurisdictions, defendants languish in jail for longer than the length of the maximum sentence for their alleged criminal offenses and still never see an attorney.
Judges and prosecutors routinely pressure indigent defendants to plead guilty without counsel. A 2011 report revealed that 70 percent of misdemeanor defendants in some Florida counties pleaded guilty at arraignments that lasted an average of 2.93 minutes, and one-third of them were not represented by counsel.
Even when defendants do have counsel, their attorneys are often burdened with enormous caseloads that make it impossible for them to provide adequate representation. According to American Bar Association standards, no defense attorney can effectively handle more than 150 felony cases or 400 misdemeanors in one year. Yet attorneys in one Georgia office were forced to handle more than 250 felony cases each in 2012. Attorneys in Maryland, New York, Rhode Island and Tennessee have been assigned more than 1,000 misdemeanor cases per year. The statewide defender organization in Missouri was so understaffed that its director publicly acknowledged that the attorneys had to "triage" their cases in ways that were leading to wrongful convictions.
In addition to being severely underfunded, public defenders throughout the country often do not have enough independence to do their jobs. In many places, judges only assign indigent defense cases to attorneys who they know will plead those cases out. And public defenders are often appointed by governors or commissions whose members are more interested in efficiency than quality representation.
Problems in indigent defense delivery systems are not the only reason why Gideon‘s promise remains illusory. Courtrooms around the country are filled with private defense attorneys who fail to investigate their cases, never meet their clients before the day of trial and fail to file any motions or object to inadmissible evidence. There are lawyers who sleep through trial, abuse alcohol and drugs while representing defendants or are out in the courthouse parking lot while key prosecution witnesses testify.
Appellate courts routinely uphold the resulting convictions due to the Supreme Court’s 1984 decision in Strickland v. Washington. Under Strickland, before an appellate court can find that a defense lawyer was constitutionally ineffective, the defendant must show both that his attorney performed unreasonably given prevailing norms of practice in the community and that the deficient performance prejudiced the defense. In analyzing counsel’s actions, Strickland requires courts to presume that defense counsel was adequate and that her decisions were strategic, making it virtually impossible for defendants to successfully challenge their trial attorneys’ decisions.
The anniversary of a landmark decision is often an occasion to celebrate. There is no question that Gideon was a promising decision that articulated principles worthy of celebration. But until Gideon‘s promise is fulfilled in practice, the real celebration will have to wait.
Eve Brensike Primus is a professor at the University of Michigan Law School, where she teaches criminal law, criminal procedure and habeas corpus, and writes about structural reform in the criminal justice system.