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.
“[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.
During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
by G. Ben Cohen. Mr. Cohen is OF COUNSEL at The Capital Appeals Project. Cohen was VISITING LITIGATION COUNSEL at the Charles Hamilton Houston Institute in 2011.
On April 29, 2013, after briefing and oral argument on whether the State’s failure to fund counsel for a defendant should be weighed against the state for speedy trial purposes, five Justices of the U.S. Supreme Court turned a blind eye in Boyer v. Louisiana to the funding crisis in Louisiana’s public defender system and declined to address the seven year wait between Jonathan Boyer’s arrest and trial. On Boyer’s heels comes another case underscoring the unconscionable harms of the Bayou State’s decimated criminal justice system – which has depended on traffic tickets to fund the defense function.
On June 20, 2013 the Supreme Court will decide whether to grant certiorari in Michael Garcia v. Louisiana. The public defender office could not afford to adequately provide separate capital representation to Mr. Garcia and his two co-defendants. By law, however, the Public Defender could not represent all three defendants himself. Even the prosecutor informed the trial court at Mr. Garcia’s very first hearing that the multiple representation might pose a conflict of interest, but the judge left the Public Defender to work it out.
The Public Defender assigned all the capitally-certified attorneys from his office, including himself, to represent Mr. Garcia, and assigned lawyers who were not certified to represent defendants facing the death penalty to represent the two co-defendants. This refusal to hire outside counsel saved the public defender office from going bankrupt. It also prevented the state from seeking death against the two other defendants. But it meant that Mr. Garcia’s lawyer chose him as the only defendant against whom the State could seek the death penalty.
Last month, U.S. Senator Patrick Leahy (D–Vt.) reintroduced the Gideon’s Promise Act of 2013 to address the problems plaguing the indigent defense system which have left the promise of Gideon v. Wainwrightincreasingly hollow for the poorest people in our society. The act would require states to use existing federal funds to improve the administration of criminal justice in a comprehensive, strategic way, and to collaborate with the Department of Justice and local authorities to devise a plan for adequately addressing indigent defense needs. If states refuse to comply then the Department of Jusice would have the power to take them to court to make sure that they are meeting their constitutional obligations.
But Leahy’s bill doesn’t go nearly far enough to address budget-related failings in our criminal justice system. With sequestration at the federal level, and years of budget cutbacks at the state level, we’re now to the point where years of political indifference to funding the judicial branch has affected the basic operation of the courts and the services that we expect them to provide.
This is a crisis that’s reached such endemic proportions that Chief Justice John Roberts made it a focus of last year’s state of the judiciary report, where he made the case that the federal courts were already being as cost-effective as they could possibly be, and warned that “significant and prolonged shortfall[s] in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”
That scenario is already playing out in state and local courts across the country.
The effect of over a billion dollars of cuts in the last four years has been nothing short of devastating to the Los Angeles Superior Court system. Court officials plan to shutter a dozen courthouses and make an indeterminate number of staff layoffs. The only thing these courthouses will be used for now is for collecting traffic fines and administrative functions. The actual business of dispensing justice will be triaged at the remaining courthouses in the county, “where certain types of cases are heard at each remaining courthouse.”