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.
To date federal support for state and local criminal justice systems has compounded imbalances in the allocation of resources among criminal justice agencies. Of the over $500 million dollars the Federal government spends annually to support state and local criminal justice efforts, only one tenth of 1 percent of this money was spent on public defense services, according to a federal report in 2011 by the Government Accountability Office (GAO). This lack of balance does not just implicate the direct representation of individuals; it also undercuts the ability of courts to operate effectively and produce fair results for any party, undermining the integrity of the justice system. As stated in 1999 by then-Attorney General Janet Reno: "[o]ur criminal justice system is interdependent... If one leg of the system is weaker than the others, the whole system will ultimately falter."
Attorney General Holder and the Department of Justice continue to take important steps to “reclaim Gideon’s petition.” But federal rights must be protected and upheld by all branches of government. Congress now has the opportunity to participate in changing the trajectory of indigent defense that began 50 years ago. On October 30, 2013, Representative Ted Deutch of Florida introduced landmark legislation to rectify the persistent failure to secure the right to legal counsel. The National Center for the Right to Counsel Act creates a federal nonprofit corporation to provide training, technical assistance and other support to state and local entities to assist them in fulfilling their obligations under the Sixth Amendment. The legislation provides the means for promoting balance, transparency and accountability in the administration of justice.
While the filing of the National Center legislation during the anniversary year casts another spotlight on the status of Gideon’s stalled mandate, the importance of the timing goes beyond rectifying a half century of neglect. As cities and counties struggle to recover from the serious economic recession, they have begun to re-evaluate the hefty price tag of criminal justice policies that have resulted in exploding jail and prison costs and the socially de-stabilizing rippling effects of over-incarceration. People languishing behind bars pre-trial because they cannot afford to pay bail comprise 60% of the nation's jail populations, despite being presumed innocent. This costs our country over $9 billion dollars a year, according to the Pre-Trial Justice Institute. On an individual level, missing even a day of work due to unnecessary pretrial incarceration can turn one’s fragile stability into debilitating impoverishment. Access to counsel plays a significant role in reducing unnecessary incarceration: providing economic benefits while ensuring equal treatment under the law.
Last week, the House of Representatives unanimously passed House Resolution 196 – Supporting the Sixth Amendment to the US Constitution, the Right to Counsel. This is a welcome vote by the House of Representatives, signaling a bi-partisan recognition of the need to fix our justice system by supporting the right to counsel. It is time now for Congress to turn their words into action – and the words of the Bill of Rights into reality.