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entitled to counsel at bail hearings but rather than coming up with $28 million to pay for it, the state Legislature repealed the law instead.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