Indigent Defense

  • December 16, 2013

    by Samantha Batel

    At the beginning of the recent fall semester, Professor Russell Christopher asked the students in his Criminal Procedure class at the University of Tulsa College of Law to raise their hand if they had heard of Gideon.  Out of the 40 second and third year students present, only two hands went up.

    Clarence Earl Gideon, the man to which Professor Christopher was referring, was the Plaintiff in the 1963 landmark Supreme Court case Gideon v. Wainwright, which held that the Sixth Amendment’s guarantee of counsel applies to the states.

    This year, Gideon celebrates its 50th anniversary. Law schools across the country have commemorated the case for both legal instruction and historical edification. This milestone, however, has also been met with a critical eye. Indeed, the real topic of study is not what Gideon was meant to accomplish, but whether it has succeeded.

    In her new book, “Chasing Gideon: The Elusive Quest for Poor People’s Justice,” author Karen Houppert describes a crisis in our nation’s courts. Discussing her work with the ACS Student Chapter at Harvard Law School, Ms. Houppert explained that the war on drugs, mandatory minimum sentencing, tough-on-crime policies and pre-trial incarceration have overtaxed our public defense system. She described one defendant in Spokane, Washington who was acquitted of vehicular manslaughter in 2004 only after the public defender was able to obtain a delay in the trail so that he could fully investigate the case, something that would have been impossible without the delay due to the defender’s caseload. That same year, a twelve-year-old boy pled guilty to a class B felony having never had an independent interview with his public defender, who was handling 440 other cases.

  • December 9, 2013
    Guest Post

    by Nanci Clarence, Clarence Dyer & Cohen LLP; Member, Board of Advisors, ACS Bay Area Lawyer Chapter

    This year should be a cause for celebration, as we mark the 50th anniversary of the right to counsel for indigent defendants recognized by the Supreme Court in Gideon v. Wainwright. Sadly, in the last year we have seen that critical right threatened by sequestration and budget cuts that jeopardize the stability of Federal Defender organizations, and that undermine the ability of Criminal Justice Act (CJA) counsel to represent these clients most in need.

    Federal Defender organizations and CJA panels represent clients charged with federal offenses in over 200,000 cases each year – 90% of the defendants in federal court. This system of funded Defender organizations and private CJA counsel have together represented a model of quality and cost-effective representation, and have been protecting the adversarial system of justice for the past forty years.

    This successful model is now at risk. In Fiscal Year 2013, Federal Defenders suffered a 10% cut to their budgets due to sequestration. Hundreds of full-time positions were lost, with over 10% of staff being terminated or lost to early retirement. The Defender offices were also forced to impose over 160,000 hours of unpaid furloughs. While Federal Defenders’ budgets were slashed, the Justice Department avoided furloughs for all of its employees. These cuts create greater long-term expenses through delays in litigation and longer pretrial detention.

    At the end of Fiscal Year 2013, the Executive Committee of the Judicial Conference of the United States adopted emergency measures to save the Defender programs from the severe impacts of sequestration. Unfortunately, those measures required the deferral of CJA payments for up to four weeks, and the temporary reduction of $15 per hour of the CJA panel rate. This rate cut to CJA counsel undermines a rate that was secured after years of effort, and poses a real threat to the ability of private counsel to continue their vital service to the Court by providing indigent defense.

  • November 19, 2013
    Guest Post
    by Jo-Ann Wallace, President and CEO, National Legal Aid and Defender Association
     
    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.
  • November 1, 2013
     
    “[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 their budgets 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.
     
    ACS has been at the forefront of noting the extraordinary importance of Gideon on its 50th anniversary. On Nov. 14, the ACS Minneapolis-St. Paul Lawyer Chapter, along with the ACS Student Chapters at Hamline University School of Law, University of Minnesota Law School, University of St. Thomas School of Law and William Mitchell College of Law, will host former Vice President Walter Mondale for a conversation on Gideon. Moderated by the Honorable Kevin S. Burke of Hennepin County (Minnesota) District Court, Mondale will discuss the importance of indigent defense and his role in Gideon. As Minnesota’s Attorney General at the time, Mondale helped gather attorneys general from 23 states for an amicus brief in favor of Clarence Earl Gideon and the proposition that all felony defendants should be afforded counsel, even if a defendant did not have the means to pay.
  • September 20, 2013
     
    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."