March 22, 2013

ACS Student Convention Speakers Provide Resounding Call for Reforming Indigent Defense

ACS Student Convention, Eric Holder, Gideon v. Wainwright, Jim Brosnahan, Professor Elisabeth Semel, Stephen Bright

by Heejin Hwang

“Clarence Earl Gideon, defend yourself.” With those words fifty years ago, Abe Fortas, who represented Clarence Gideon’s appeal in front of the Supreme Court, highlighted the isolating circumstances regularly faced by indigent defendants without representation. But upon its unanimous ruling in Gideon v. Wainwright, the Supreme Court foundthat all citizens -- rich or poor -- were constitutionally guaranteed a right to counsel, declaring that no one facing criminal charges would have to navigate the legal system alone.

As we commemorate the legacy of Gideon this week, however, our criminal justice system continues to abandon defendants, and defenders, alike. Delivering one of the keynotes at ACS’s inaugural Student Convention in early March, Stephen Bright, President and General Counsel of the Southern Center for Human Rights, spoke of his clients’ hopelessness. For example, he noted the people with cases before the Texas Supreme Court, 92 percent of them do not have a lawyer.  One homeless woman on trial, Bright said, chose to go to jail, because at least then she would be fed and “sheltered.”

As noted yesterday during a national ACS symposium on Gideon several experts said too many states have proven obstacles to ensuring Gideon’s promise. Recently, Attorney General Eric Holder declared that “America’s indigent defense systems exist in a state of crisis” and announced $1.8 million in funding to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is promising, but more action is needed to ensure that states are aware of the funding and spend it appropriately. From 2005 to 2010, the Department of Justice administered 13 grant programs to support indigent defense systems; yet, a 2012 Government Accountability Office (GAO) report stated that “among the 9 grants …, two-thirds or more of state, local, and tribal respondents … reported that they did not use these funds for the specified purpose, due to competing priorities.” Moreover, “no more than 54 percent of grantees or public defender offices responding to GAO’s surveys were aware that such funding could be used to support indigent defense.”

ACS’s inaugural Student Convention brought together nearly 200 law students from across the country and focused on the state of indigent defense 50 years after Gideon.  Speakers and practitioners celebrated the landmark case but also took an unabashedly introspective look at themselves, rallying their colleagues to take their constitutional responsibility more seriously.

“You go anywhere in this country, and you see people getting screwed,” San Francisco Public Defender Jeff Adachi said during the signature Convention panel titled, “Gideon at 50.” “I wish I could say it’s because we don’t have enough lawyers, but we do….We don’t have enough who give a damn.” Too often indigent defendants are saddled with overworked, disinterested, or incompetent attorneys. It should not be this way. Professor Elisabeth Semel, another panelist and Director of Berkeley Law’s Death Penalty Clinic, proposed a simple solution to the latter issue: In addition to the ABA guidelines requiring lawyers to be appointed, qualified, and compensated, courts should assign only those lawyers who actually have the relevant experience and skills -- ironically, a basic requirement for all job applications, except for jobs defending peoples’ lives.

Such steps together can help us reach Gideon’s promise. But law students must also become much more engaged. Their skepticism was perceptible at the Student Convention. After hearing panelists’ remarks about conducting thorough investigations, one student asked, “How do you balance comprehensive research with a speedy trial so you can get through the caseload?” Too often, law students, discouraged by a seemingly impossible system and grim lifestyle, choose other careers over that of being a public defender.  This further perpetuates the deficit of competent and passionate public defense lawyers. Systemic reform and measures to bolster long-term career sustainability of public defenders may alter the landscape. Bright emphasized that students must recognize their role in fighting for “justice for all,” saying “It’s only going to get better if you go there. It’s only going to change if you go there.”

Encouraging students to join in this fight, Jim Brosnahan, Senior Partner at Morrison and Foerster and a Convention panelist asked, “Will your generation stand up and say this isn’t right?” He waited for a split second, scanned the room full of soon-to-be lawyers, and replied, “I am sure of it.”