Happy Birthday Gideon

Tomorrow, March 18, marks the 50th anniversary of the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright, which guaranteed the right to counsel to every person accused of a felony.  Since then, local governments nationwide have struggled to fulfill the promise of Gideon and the Sixth Amendment – the Sixth Amendment guarantees the right “to have the assistance of counsel-” Gideon made it clear that the right to counsel does not mean “the right to retain counsel if you are wealthy,” but that you have the right to counsel even if you are indigent and cannot pay for an attorney.

The right to counsel, however, is meaningless unless it is the right to effective counsel, and this is where local and state governments have fallen short.  When public defender offices are woefully underfunded, and appointed attorneys are paid so little that they lose money representing indigent clients, the right to counsel might mean: “the right to effective counsel if you are wealthy,” and “the right to have an attorney stand next to you in court” if you are indigent.

But 50 years later there is also much to mourn about Gideon and the Supreme Court standards that followed it. Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation’s poorest litigants. Yes, you have the right to a court-appointed lawyer today — the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer — often just a “potted plant” — by your side, you’ve earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.

Today, sadly, the Gideon ruling amounts to another unfunded mandate — the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else. And the reasons are no mystery. Over the intervening half-century, Congress and state lawmakers consistently have refused to fund public defenders’ offices adequately. And, as it has become more conservative since 1963, the United States Supreme Court has refused to force legislators to do so. “I think the Court doesn’t have the initiative to get involved in improving the administration of justice in every state,” former Justice John Paul Stevens told me in late January. “The Court’s really not the institution to get involved in that.”

God bless our public defenders who are believers in the right to counsel and who are fighting to do the best that they can within a system that doesn’t care about them and won’t help them.  Our legislature, courts, prosecutors, government, and society, more often than not, is satisfied with having a warm body there in the courtroom, someone we can point at and say “see – we are providing counsel for the indigent; the process is fair.”

But when public defenders are trying to manage caseloads that are impossible to manage, when they are meeting clients for the first time as they walk into the courtroom, when it is commonplace to not investigate, to not interview witnesses, to not look for exculpatory evidence because there are no funds for investigators, when it is commonplace to not retain experts because there are no funds to pay them, when a public defender’s office denies the right to a preliminary hearing to every indigent defendant in two counties, there is a problem.

Funding for indigent defense must keep pace with funding for law enforcement and prosecution – if we are going to arrest and prosecute ever-increasing numbers of citizens for thousands of varied crimes, we are also going to have to provide counsel for those citizens who are indigent.  It’s very simple – if there is no funding for indigent defense, cut back on the number of people we are arresting and prosecuting.

Be vocal.  Talk to your legislators.  Write opinion pieces.  Start a motions practice that asks for funding and make a record when it is denied.  Fight for funding and don’t back down.  Happy birthday Gideon.

2 Responses to “Happy Birthday Gideon

  • Which two counties PDs office denies preliminary hearings?

    Excellent written material. Right on the mark.

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