Fifty years ago, a unanimous Supreme Court held in Gideon v. Wainwright that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” This holding was described in the opinion to be “an obvious truth,” a recognition that Gideon’s clear and powerful proclamation – protecting the fundamental human right to liberty – is one that resonates with us all.
But the mandate was not self-executing, and far too little planning or coordination was undertaken to translate the legal pronouncement into consistent practice. The fundamental constitutional right of the Sixth Amendment was left to fall victim to the inertia of the “machinery of criminal justice” – a counterweight poignantly exposed in Gideon -- and the political realities of each state and county. The failure to act on a federal level has reversed the tides of history to the very problem Gideon attempted to correct. That is: local political entities cannot be solely relied upon to ensure the constitutional right to counsel is properly structured and funded. As a result, the Attorney General declared on the anniversary of the Gideon decision: “It’s time to reclaim Gideon’s petition – and resolve to confront the obstacles facing indigent defense providers.”
The criminal justice system is an eco-system in which the component parts are inextricably intertwined. If police officers arrest more individuals, prosecutors have more cases to process and public defense organizations have more people for whom to provide legal representation. However, while other system actors have mechanisms to prioritize cases or to exercise discretion over which cases to pursue, the Constitution affords public defenders no such “release valve” for controlling workload. This reality exacerbates funding inequities that exist at the state and local levels.
by J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law
Early next year, the Court will hear argument in Hall v. Florida, a case that many practitioners have awaited since 2002. That year, the Court issued its opinion in Atkins v. Virginia, wherein it held that “the mentally retarded should be categorically excluded from execution.” The 6-3 decision in Atkins marked the great divide between those on the Court who embrace the concept of evolving standards of decency and those who eschew itfor determining which defendants may be put to death and which should be categorically excluded. The Court declined to define the parameters of mental retardation and left that task to the states. Some state legislatures, like Florida, have adopted a constrained definition of mental retardation, relying heavily on an I.Q. of 70 as a bright line.
A fact often overlooked in Atkins is that the majority and Justice Scalia, in dissent, agreed that some people, due to their lack of cognitive capacity, should be excluded from the penalty of death. The majority reached its conclusion after a careful examination of the trends in state legislatures to exclude mentally-retarded defendants from execution. Justice Scalia reached his conclusion after several paragraphs of constitutional hermeneutics, whereby he ascertained that profoundly mentally-retarded defendants were excluded from execution at the time of the framing of the Constitution and its Eighth Amendment prohibition on cruel and unusual punishment. Where the majority and Justice Scalia were at odds was in defining which people fit into the category of defendants who should be categorically excluded from execution. But both the majority and Justice Scalia use the term “mental retardation” as a kind of marker to describe a group of people who must be excluded from the penalty of death.
In 2002, when the Court decided Atkins, the term “mentally retarded” had already fallen from favor among medical and educational professionals, who favored the term “intellectual disability” to describe a person with limited cognitive capacity and limited adaptive functioning. With the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in May 2013, the American Psychiatric Association has jettisoned the now-pejorative “mental retardation” and replaced it with “intellectual disability disorder,” a subset of neurocognitive disorders, which include dementia. The APA first embraced the term “mental retardation” in 1961, in an effort replace older, pejorative terms such as “idiocy.”
“[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Fifty years ago this past March, Justice Hugo Black wrote those words for a unanimous Supreme Court in holding that the Sixth Amendment provided Clarence Earl Gideon with the right to counsel, despite his indigent status, as he stood trial in Florida for allegedly breaking and entering a Panama City pool hall.
Gideon v. Wainwright forever changed American jurisprudence, ensuring that guilt or innocence in a criminal matter would be fairly adjudicated, regardless of a defendant’s economic circumstance. But as states and the federal government have dramatically slashed their budgets over the last several years, the promise enshrined by Gideon has come under increased threat as public defenders have seen theirbudgets bear a significant brunt of these cuts.
Congressman Ted Deutch (D-Fla.) introduced this week a bill to help remedy the effect of these cuts and ensure the promise of Gideon. Entitled the “National Center for the Right to Counsel Act,” the measure would establish a private, non-profit center to provide “financial support to supplement…funding for public defense systems” as well as provide “financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants.” The Act would also create geographically-based “regional backup service centers” which would provide public defenders with access to investigators and sentencing mitigation experts as well as information on available financial grants. A nine-person “State Advisory Council” would be formed in each state to monitor the quality of public defender services and ensure compliance with the Act.
For American communities of color, the latest revelations about U.S. government surveillance, at home and abroad, has been met without much surprise and with a long memory of the injustice suffered by minority groups since our nation’s inception.
“We are a settler-colonial nation,” explained Fahd Ahmed. “Race and social control are central to the project.” As the legal and policy director for Desis Rising Up and Moving, an organization dedicated to organizing and amplifying the voice of immigrant workers, Ahmed has seen first-hand how the government isolates and targets vulnerable populations. In particular, he noted the targeting of Muslims by the NYPD under the supposition of anti-terrorism efforts, but was careful to emphasize the broader scope of the present danger. “These practices won’t be limited to one community,” he said. “After all, surveillance has a purpose – to exert the power of the state and control the potential for dissent.”
Other panelists reached similar conclusions. Surveillance is “not anything new” for people of color, observed Adwoa Masozi, a communications specialist and media activist. Recalling the COINTELPRO programs of the 1960s and 1970s, she named the major difference between then and now: “The government is just more open about it.”
Alfredo Lopez, the founder of May First/People Link, called the recent news an indication that “the ruling class is figuring out how to rule a society that is rapidly changing beneath it.”
Seema Sadanandan of the American Civil Liberties Union’s National Capital Area Affiliate called the last few months a “tough time for white people,” whose relatively unchallenged faith in the Bill of Rights has been profoundly shaken.
Still, the next steps were harder to assess. For example, what role do lawyers and the law have in movements against this kind of surveillance? And how should activists interact, if at all, with the Internet and popular platforms like Facebook and Twitter?
The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).