At Milestone Anniversary, Gideon's Promise Is Unrealized

      Clarence Earl Gideon revolutionized the criminal justice system with a handwritten petition to the U.S. Supreme Court complaining about the state’s refusal to appoint a lawyer for him when he was tried and convicted in Florida in 1961 of breaking into a pool room. Gideon’s victory did not end, however, with the Supreme Court’s decision on March 18, 1963, requiring the government to provide public defenders for indigent defendants in felony cases. Gideon himself benefited from the decision in a retrial five months later when, represented this time by a lawyer, he was found not guilty.
      The 50th anniversary of the court’s unanimous decision in Gideon v. Wainwright is a fitting time both for celebration and for rededication to making the promise of Gideon reality. The Sixth Amendment right to counsel that Gideon and later cases safeguards exists in far too many cases only on paper, not in reality. Public defenders — overworked, underpaid, underresourced — give far too many defendants only the semblance of legal representation in a criminal justice system where the prosecution still has most of the cards.
      That is the central message of a 24-page report released last week [April 9] by the Brennan Center for Justice that describes the promise of Gideon as “unrealized.” Brennan Center attorneys Thomas Giovanni and Roopa Patel aptly depict Gideon as an “unfunded mandate” — a directive from the Supreme Court that state and local governments fail to adequately fund.
      The need for legal representation for the poor is if anything greater than it was in Gideon’s day. A half-century of tough-on-crime legislation has made the United States a global leader in incarceration. U.S. prisons held about 217,000 people in 1963; the prison population has increased since then more than tenfold to 2.3 million. “We live in an era of mass incarceration,” Giovanni and Patel write.
      The unwinnable war on drugs is one of the major reasons why U.S. prisons are filled to capacity and beyond. Almost half the people in federal prisons are there for drug offenses, but only a small fraction of those are serving time for serious drug trafficking. In state prisons, nearly half of the inmates are behind bars for nonviolent offenses, including a fair share of drug-related convictions.
      Tough sentencing laws give federal and state prosecutors more leverage in plea bargaining than they had a half century ago. Prosecutors who charge to the max hold draconian sentences over a defendant’s head in plea negotiations. Any number of defendants risk a decade or more in prison if they turn down a plea offer and insist on going to trial.
      Against the well-armed prosecutor, indigent defendants typically have a public defender with far too many cases to give any of them the attention they deserve. As Giovanni and Patel note, the American Bar Association recommends that public defenders carry a caseload of 150 felonies or 400 misdemeanors per year. The average public defender’s load is considerably higher. In New Orleans, for example, defenders handled on average 19,000 cases in 2009 — seven minutes per case.
      For many indigent defendants, this is assembly-line injustice. In the mine-run of cases, public defenders have little to review the evidence or conduct an investigation — indeed, they have barely enough time to interview their clients.
      Federal public defenders are on average better qualified and better resourced than their state and local counterparts. But the current budget sequestration is having some impact. The federal defenders representing Suleiman Abu Ghaith, Osama bin Laden’s son-in-law and alleged al Qaida spokesman, in his conspiracy trial in federal court in New York City have asked that the case be delayed until January because of the five-week furlough imposed on the office to absorb the budget cut.
      The federal government does offer grants to supplement state and local spending on public defenders under the 20-year-old Justice Assistance Grant program. States have discretion on how to allocate the money: $287 million in 2012. Most of the money — 60 percent in 2012 — went to law enforcement. Combined, prosecutor and defenders offices got less than $16 million, and prosecutors got the lion’s share: $13.8 million versus only $1.9 million for defenders. Giovanni and Patel note that many defender offices are unaware they can apply for grants under the program.
      The Brennan Center report offers three “common sense reforms” to improve the country’s system of public defense. One step is to reduce the number of defendants put into the assembly line by reclassifying many petty offenses into non-jailable civil infractions or legalizing the conduct altogether.
      The two other steps focus directly on defender offices. The report naturally calls for more funding not only from the usual sources — state and local budgets and federal grants — but also from “unlikely sources,” such as the private bar. The report suggests that more law firms follow example of some in Atlanta and New York City of sending associates to externships in public service organizations, including defender offices. The report also specifically calls for more funding for training public defenders and for hiring social workers for defender offices.
      Political, fiscal, and financial realities militate against all these recommendations. Law-and-order sentiment remains strong; governments at all levels are financially strapped; and private law firms are themselves financially pinched. But the Supreme Court’s historic step in Gideon deserves better today than to be honored more in the breach than in the observance.