The Ongoing Battle to Bolster Indigent Defense 50 Years after Gideon

March 21, 2013

by Jeremy Leaming

People mired in poverty do not make a powerful political constituency. Indeed they are and remain marginalized, partly because one of the nation’s major political parties is beholden to the interests of the superrich and obsessed with slashing entitlements.

So 50 years after the Supreme Court ruled in Gideon v. Wainwright that it is a fundamental right for indigent defendants in criminal trials to be provided counsel, it is hardly surprising that far too many states have shirked their constitutional obligation and made a shameful mess of the nation’s indigent defense system.

In the landmark opinion, Justice Hugo Black cited the text of the Sixth Amendment that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” Black also rejected earlier Supreme Court precedent that held the Sixth Amendment’s call for a right to counsel for indigent defendants could not be applied to the states. Instead, Black found that the right to counsel was a fundamental one that states are obligated to protect, because of the Fourteenth Amendment, which bars the states from depriving people -- even those with little means or the marginalized -- of liberty.

Many leading constitutional scholars and public interest groups have long called for Congress to do more to ensure that the states fulfill a constitutional obligation. They’ve done so because many states have underfunded public defenders' offices or passed laws requiring indigent defendants to pay fees to obtain a public defender.

In an ACS Issue Brief, Stephen Bright, president and senior counsel of the Southern Center for Human Rights, and Lauren Sudeall Lucas, a law professor at Georgia State University, called on federal lawmakers to seriously step up efforts to ensure the promise of Gideon:

The federal government could take an active role in improving state-run indigent defense programs by: (1) making grants directly to state or public interest programs demonstrating best practices or attached to certain minimum requirements regarding training, caseloads, and supervision; (2) conditioning funds awarded to law enforcement and prosecution agencies on a showing that the indigent defense system has reached a satisfactory level of functioning; and (3) establishing a National Center for Defense Services, similar to the Legal Services Corporation (LSC). The federal government has funded training, but its limited value in a system that suffers from such great deficiencies must be recognized. The federal government could also seek the authority to bring lawsuits to compel states to comply with the Sixth Amendment and support private litigation efforts by filing of amicus briefs. All of these tools will likely be necessary to vindicate the Constitution in states like Georgia where improvements were slow in coming and are still woefully inadequate almost 50 years after Gideon was decided.

University of Michigan Law School Professor Eve Brensike Primus in an ACS Issue Brief said the Department of Justice should also become more active in this area, arguing for a law that would “create the possibility of federal enforcement actions initiated by the DOJ against state actors who systematically violate defendants’ constitutional right to effective counsel. In these federal enforcement actions, DOJ would be authorized to seek appropriate equitable relief, including injunctive relief, to stop states from engaging in practices that result in these systemic violations.”


During an ACS symposium today on Gideon, several speakers also called for more action by the federal government to enforce a constitutional right. Video of the symposium will be available soon on the ACS website.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has long championed criminal justice reforms, including action to force states to stop flouting their constitutional duties to provide indigent defendants with competent counsel.

This week marking the 50th anniversary Gideon, Leahy introduced the Gideon’s Promise Act of 2013, which includes suggestions made by Bright, Lucas, Primus and others. For instance the Act would, Leahy said, establish a “cause of action for the Federal Government to step in when States are systematically failing to provide the representation called for in the Constitution.” Moreover, the Act calls for states to use funds from a federal grant – the Edward Bryne Memorial Justice Assistance Grant (JAG) – to help fund indigent defense services.

Leahy acknowledged progress since Gideon, but said we “must also be honest and recognize that in too many courtrooms it is better to be rich and guilty than poor and innocent. The rich will have competent counsel, but those who have little, often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, overworked, inept, uninterested, or worse.”