In June 1961, Clarence Earl Gideon was charged with breaking into the Bay Harbor Poolroom in Panama City, Florida. He was accused of stealing wine, cigarettes and money. Mr. Gideon asked the judge presiding over his case to appoint him a lawyer because he could not afford to hire one. Apologetically, the judge denied Mr. Gideon's request and explained the law of Florida permitted counsel be appointed only when a defendant was facing a capital offense. Consequently, Mr. Gideon acted as his own counsel. The jury convicted him. He was sentenced to five years. From a Florida state prison, using prison stationery, Mr. Gideon filed a habeas corpus petition in the Florida Supreme Court. Denied there, Mr. Gideon filed a writ of certiorari in the U.S. Supreme Court. That Court appointed a prominent D.C. attorney - future Supreme Court Justice Abe Fortas - to represent Mr. Gideon in his appeal.
Today marks the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), in which the U.S. Supreme Court held "[t]he right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment." In the Opinion, Justice Black writes:
Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. 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.
This past summer, I heard a presentation about this case and saw copies of court documents, TV interviews with Mr. Gideon, interviews with attorneys and judges involved in the case, etc. Last night I found the oral argument online (along with a full transcript of it). I want to talk about my favorite things that Mr. Fortas said, but I know this post is going to be long enough as it is.
Since the summer, I have been excited for this day. I had plans for having a big birthday party, taking literature to the Statehouse recognizing the people of Kansas who do indigent defense (as public defenders and appointed counsel), sending thank you notes out to people I know, etc. Then other things took over my time. Even so, I was still excited about today - until last week. Now I am just irritated.
Given it's the 50th anniversary of this landmark decision, the past week featured lots of articles, reports, etc. on the state of indigent defense in this country. There was this article in the New York Times about people who sit in jail longer when they have no attorney, who have no access to attorneys because of where they live and other issues. There was this story on NPR that also talked about access to attorneys and attorneys with large caseloads, etc. One of the articles I read talked about how there have been over 300 exonerations - in the same paragraph where it talked about ineffective indigent defense providers.
There was the first of a three-part series from the National Association of Criminal Defense Lawyers called Gideon at 50: A Three-Part Examination of Indigent Defense in America. The report issued last week is called Rationing Justice: The Underfunding of Assigned Counsel Systems, which (according to the NACDL website) "documents the low rates paid to assigned counsel and how that results in defendants receiving inadequate representation. . . . this report serves as a stark reminder that much work remains to secure the meaningful protection of Americans’ Sixth Amendment right to counsel."
There was a speech by U.S. Attorney General Eric Holder discussed in this article in the Atlantic. (There were a few articles about Gideon in the Atlantic.) An excerpt from that speech:
In short, America's indigent defense systems exist in a state of crisis. Like many of you, this is something I've seen firsthand. As a judge on the District of Columbia Superior Court -- and, later, as United States Attorney for the District of Columbia -- I frequently witnessed the devastating consequences of inadequate representation. I saw that wrongful convictions and unjust sentences carry a moral cost that's impossible to measure -- and undermine the strength, integrity, and public trust in our legal system. I also recognize that, in purely economic terms, they drain precious taxpayer resources -- and constitute an outrageous waste of court funds on new filings, retrials, and appeals just because the system failed to get it right the first time.
There was this article called "Gideon's promise still unfulfilled" from the National Law Journal, again highlighting the lack of funding for indigent defense, big caseloads, etc. An excerpt:
About 80 percent of the accused rely on court-appointed counsel. Overwhelmed with cases and starved for resources, some public defenders have little choice in representing their clients but to "meet 'em and plead 'em," as the saying goes, spending just a few moments talking with a defendant before entering a plea. "People are just processed through the courts. There are no professional legal services provided," said Bright [president of the Southern Center for Human Rights, which represents people facing the death penalty and advocates for indigent defense reform], who said that guilty pleas account for the vast majority of criminal convictions. Too often, a public defender is reduced to being little more than a messenger, conveying the prosecutor's plea offer but unable to "argue [because] you don't know the facts or anything about the background of the client," he said.
He recounts the plaintive query from one defendant: "What would happen to my case if I had a real lawyer?"
I have been a practicing public defender in Kansas for 13 years. I participated in valuable clinics (both in experience gained from and the services provided by) at KU Law School that provided indigent defense. After reading/hearing all of this recent press, I have three simultaneous gut reactions:
1) You are right.
2) F*!% you.
As to 1), I recognize and, to some extent, live and breathe what these articles and reports are talking about. I TOTALLY GET IT AND AGREE. There is no doubt that while we have come a long way, this country (on all levels - cities, counties, states, federal) has a long way to go in providing the defense Justice Black and his fellow justices envisioned in Gideon - and in how we pay, equip and support the people providing that defense. While circumstances vary depending on location, etc., believe me - these articles are talking about reality in this country.
As to 2), I know this anniversary should not really be about me and mine. It is about people who stand accused and the rights due to them. (And how ensuring those rights benefits all of society.) It is about equal access to justice. But I cannot get over the fact not one piece of press I have seen/heard has celebrated or thanked public defenders and appointed counsel for the work they do. Not one story I have seen has focused on policy makers and/or other stakeholders who work to ensure access to counsel and adequate resources to that counsel.
And those stories are out there . . . in fact, there was one in August about members of the Kansas Legislature meeting for hearings on new Board of Indigent Defense Services board member appointments. Several senators impressed upon the to-be-confirmed board members that they may be called upon to advocate for funding for indigent defense. Senator Tim Owens "explained the state could be 'in dire trouble' if it doesn't provide more money for public defenders for defendants who can't afford them. Owens, a lawyer, suggested that the state could face lawsuits if it fails to do so." Senator Schodorf "said she believed the indigent defense program had been 'underserved and underfunded' throughout her 12 years in the Legislature". Senator Emler expressed concern over caseloads and funding, calling the situation "problematic". Today I want to give a shout-out to these lawmakers for their attention to this problem and to all of the others who work hard to secure funding and/or defend against funding cuts for indigent defense.
Back to my irritation . . . people - including many criminal defense attorneys - are quoted throughout these Gideon-related articles referring to counsel for indigent clients as "inadequate", "potted plants", "meet 'em and plead 'em" and not "real attorneys." Another National Law Journal article called "Not much to celebrate" talked about "[t]here are lawyers who sleep through trial, abuse alcohol and drugs while representing defendants or are out in the courthouse parking lot while key prosecution witnesses testify."
Instead of focusing on all of the negatives, how about we recognize and celebrate people for the work they do? We can do that while also pointing out the circumstances under which so many people do that work. (And, sure, we can also point out that some people are sucky at that work.) Again, I want to give a special shout-out to all of my friends who are public defenders or take court appointments for indigent clients! And a special thanks to all those people who support us in this work (families, friends, colleagues, criminal justice system stakeholders, community members, policy makers, etc.)!
As to 3), the most offensive thing to me is the way indigent defense providers are blamed for miscarriages of justice. (See A.G. Holder's speech and the National Law Journal articles for examples.) NEWSFLASH: It is not the fault of indigent defense providers that most cases end in pleas. It is not their fault so many people go through the court system. It is not their fault they are often reduced to "messengers". "Inadequate representation" is not the main cause of "devastating consequences". It is not always their fault that unjust sentences result and have a moral and economic cost. Crappy defense counsel is not the main cause of wrongful convictions.
All I can say is thank goodness for search engines, which brought up this editorial called "Gideon's Muted Trumpet" as I was writing this post. All I can say is thank goodness for Paul Butler, a law professor at Georgetown University, former federal prosecutor and author of Let's Get Free: A Hip-Hop Theory of Justice, for putting into words what I want to say (albeit some of his language is stronger than mine would be):
Don’t blame public defenders, who are usually overwhelmed. The problem lies with power-drunk prosecutors — I know, because I used to be one — and “tough on crime” lawmakers, who have enacted some of the world’s harshest sentencing laws. They mean well, but have created a system that makes a mockery of “equal justice under the law.”
Today over 90 percent of accused people plead guilty. It’s rational, because the costs of being wrong are just too high.
Poor people lose, most of the time, in our criminal justice system not just because indigent defense is inadequately financed, although it is, and not because public defenders are ineffective, although some are. They lose because prosecutors and lawmakers treat them like losers. That is the real crisis of American indigent defense.
Like I said in this post last year, the greatest threat to the Sixth Amendment is not an overworked and underpaid public defender/appointed counsel (or even a dope-smoking-in-the-courthouse-parking-lot one), but laws/ordinances/rules created by policy makers (covering everything from what constitutes a crime, sentencing, funding for different parts of the criminal justice system, courts, etc.) and the ramifications thereof.
So for my ask, I borrow the words of Attorney General Holder, but I mean them in a much broader way than he probably did (since he did not acknowledge the executive and legislative branches' roles in creating the obstacles indigent defense providers face):
Today -- together -- it's time to declare, once again, that this is unacceptable -- and unworthy of a legal system that stands as an example for all the world. It's time to reclaim Gideon's petition -- and resolve to confront the obstacles facing indigent defense providers. Most of all, it's time to speak out -- with one voice -- to rally our peers and partners at every level of government and the private sector to this important cause.
Oh, and today please raise a glass to or eat a piece of cake for the legacy of one (extra)ordinary man, Clarence Earl Gideon, and all of the folks who work so hard to carry out, preserve and strengthen that legacy.
P.S. One thing that does make me happy is this new movie called Gideon's Army. I saw clips from it this summer at the NACDL conference I attended. The movie "exposes these inadequacies [in the indigent defense system] and documents the courageous, marginalized and underfunded work of America's public defenders." As director Dawn Porter further explains: "As I continue to share Gideon's Army with new audiences in anticipation of its broadcast on HBO later this year, I'm reminded over and over why I was compelled to make this film: I am committed to telling the stories of the men and women who work so hard to fix our nation's broken justice system." Maybe Bends Toward Justice can help bring Gideon's Army to a theater near us soon!
P.P.S. For an article talking about Missouri primarily (with a mention of Kansas), see here for a recent KC Star piece.