The constitutional right to effective assistance of counsel to indigent defendants remains unmet, in the words of Stephen Bright, “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” As Monroe H. Freedman, among others, has noted again and again, paltry compensation has failed to attract competent lawyers and court-appointed lawyers are frequently incompetent, more often than not valued by judges for their ability to “move the courts’ calendars quickly by entering hasty guilty pleas in virtually all cases. In those few cases the accused insists on his right to trial by jury, the trials typically move rapidly because the court-appointed lawyers generally file no motions, conduct no investigations, and do little to impede the speedy disposal of the case from charge, to guilty verdict, to imprisonment.”
A “background summary” of the case, courtesy of Street Law:
“Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a window, smashed the cigarette machine and jukebox, and stole money from both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around 5:30 that morning. When Gideon was found nearby with a pint of wine and some change in his pockets, the police arrested him and charged him with breaking and entering.
Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the judge to appoint one for him. Gideon argued that the Court should do so because the Sixth Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling that the state did not have to pay a poor person’s legal defense unless he was charged with a capital crime or ‘special circumstances’ existed. Gideon was left to represent himself.
As might be expected, Gideon did a poor job of defending himself. He had done no preparation work before his trial; his choice of witnesses was unusual—for instance, he called police officers who arrested him to testify on his behalf, not having any reason to believe they would help his case. He had no experience in cross-examining a witness in order to impeach that person’s credibility, so his line of questioning was not as productive as a lawyer’s would have been.
Gideon was found guilty of breaking and entering and petty larceny, which was a felony. He was sentenced to five years in a Florida state prison, partly because of his prior criminal record. While in prison, he began studying law in the prison library, believing that his Sixth Amendment rights had been violated when he was denied a defense lawyer paid for by the State. His study of the law led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that he be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected his petition, he handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking that it hear his case. The Court allowed him to file it in forma pauperis, which meant that the Court would waive the fees generally associated with such a petition.
Generally, the Court dismisses most of these petitions; Gideon’s was among those that it did not dismiss. In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases? That was the question the Court agreed to decide when they accepted Gideon’s petition. It was not merely a question of whether Gideon had been treated fairly; the Court’s ruling would affect many other people who faced similar circumstances. In a previous decision, Betts v. Brady (1942), the Court had held that in state criminal trials, an indigent defendant must be supplied with an attorney only in special circumstances, which included complexcharges and incompetence or illiteracy on the part of the defendant. Since Gideon had not claimed special circumstances, the Court would have to overturn Betts in order to rule in Gideon’s favor. (Florida’s state law provided indigent defendants with lawyers only in capital cases; many other states had laws providing lawyers to most or all indigent defendants.)”
From today’s Los Angeles Times: “Violating the Right to a Lawyer”
By Stephen B. Bright and Sia Sanneh
[….] Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for few minutes with lawyers they just met and will never see again. This is called ‘meet ‘em and plead ‘em’ or ‘McJustice.’ Fifty years ago this week, one of the Supreme Court’s most celebrated cases, Gideon vs. Wainwright, established the right of criminal defendants to have a lawyer. The cases above are stark examples of how that right is violated every day across the nation.
A 2004 American Bar Assn. study reached ‘the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.’ Since that study, the number of cases has increased, but the number of available lawyers has not. Many poor people are detained in jails after arrest without lawyers for weeks or months. This may cause them to lose their jobs and homes, even if they are eventually not convicted of anything. Even when there is some representation for the poor, the lawyers are often struggling to handle more cases than is humanly possible.
Most states, which are responsible for more than 95% of all criminal prosecutions, have treated the Gideon decision as an unfunded mandate to be resisted. They have little incentive to provide competent lawyers to represent the people they are trying to convict, fine, imprison or execute. Many focus on minimizing costs, awarding the defense of poor people to the lowest bidder, compensating lawyers at meager rates and underfunding public defender programs. This facilitates pleas, speeds up cases and heightens the chances of conviction for anyone accused of a crime.
The cost of disregarding the right to a lawyer is enormous. Innocent people are convicted while the perpetrators remain at large. Important issues, such as the system’s pervasive racism, are ignored. A justice system in which the key actors routinely ignore one of its most fundamental constitutional requirements lacks legitimacy and credibility.
Several things must be done to comply with the constitutional right to counsel and ensure fairness. Adequate funding is essential. One example of what states can accomplish with adequate funding is Colorado’s statewide defender system, in which lawyers are thoroughly trained and supervised and have reasonable workloads and access to investigators, interpreters, social workers and experts. Courts must enforce the right to counsel instead of being complicit in its denial. Trial judges must stop orchestrating ‘meet ‘em and plead ‘em’ processing of people, which involves little or no legal representation. Courts must be responsive to lawsuits challenging deficiencies in representation.
Prosecutors — the most powerful actors in the system — should not exploit the poor quality of defense representation as a strategy for winning cases, as some do. They should instead support efforts to improve it, as Atty. Gen. Eric H. Holder Jr. has done by pointing out the deficiencies in representation and urging reforms.
Finally, the legal profession, the media, law professors, law students and others must hold the system up to public examination until both the spirit and letter of the law in the Gideon ruling is upheld. People facing the loss of life or liberty are entitled to more than McJustice.
(Stephen B. Bright teaches at Yale Law School and is president and senior Counsel of the Southern Center for Human Rights in Atlanta. Sia Sanneh is a senior fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama.) A forthcoming essay from Bright and Sanneh: “Fifty Years of Defiance and Resistance after Gideon v. Wainwright.”
Prior posts with direct or indirect relevance to the right to counsel:
“The War on the Indigent with the Sword and Shield of Neoliberal Commodification”
“When Innocent Clients Plead Guilty”
“American Violet: A Criminal Justice Story”
“Gideon’s Trumpet Heard in New York”
Finally, see Monroe Freedman’s provocative article, “An Ethical Manifesto for Public Defenders,” Valparaiso University Law Review, Vol. 39, No. 4 (Summer 2005): 911-923.
Addenda: The virtual silence on this anniversary in the legal blogosphere (at least the dozen or so blogs I routinely visit) is disappointing and disconcerting. However, here are several items worth reading:
- Paul Butler, “Gideon’s Muted Trumpet” in The New York Times.
- Andrew Cohen, “So You Want to Learn More About the Gideon Case?,” The Atlantic, March 13, 2013.
- “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” Report of the National Right to Counsel Committee, April 2009 (The Constitution Project).
- Pamela S. Karlan, “Gideon Turns Fifty,” in the Boston Review.
- From the Brennan Center for Justice, “The Right to Counsel 50 Years After Gideon: A Resource Page.”