Rarely has any anniversary of a court decision, let alone one in the criminal justice arena, garnered more attention than last month’s 50th anniversary of Gideon v. Wainwright. Rarer still has there been such universal agreement that a decision has so palpably failed to achieve its promise. Media coverage, including mainstream print publications, broadcast media and the blogosphere, was replete with anniversary stories that underscored the deplorable state of indigent defense in the United States.1 Two recent movies and a book also underscore how much work remains to ensure that every criminal defendant has access to qualified counsel.2 And on March 15, 2013, U.S. Attorney General Eric Holder emphatically noted Gideon’s failings and challenged the nation to rise to the unfinished challenge:
Yet despite half a century of progress, even today in 2013, far too many Americans struggle to gain access to the legal assistance they need. And far too many children and adults routinely enter our juvenile and criminal justice systems with little understanding of the rights to which they’re entitled, the charges against them, or the potential sentences they may face. In short, America’s indigent defense systems exist in a state of crisis. Like many of you, this is something I’ve seen firsthand. … I frequently witnessed the devastating consequences of inadequate representation.
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.
It was gratifying to hear the attorney general issue this call to arms, and equally gratifying that he singled out NACDL as a leader in working to improve representation for the disadvantaged.3 Readers of this column know that NACDL was among the first national organizations to galvanize efforts to tackle the unfinished business of Gideon.4 As a final chapter in the celebration of Gideon’s half-century anniversary, it seems appropriate to provide a report card on NACDL’s innovative approach to the event, and to close with some final thoughts on the future of the right to counsel for the accused in this country.
Gideon’s Golden Anniversary
NACDL launched a 15-month commemoration of Gideon in January 2012, commencing with the anniversary of the filing of Clarence Gideon’s pro se petition with the Supreme Court, and has now established a concrete agenda for reform. Here is a look back at NACDL’s Gideon at 50 initiatives:
January 2012 — NACDL partnered with the ABA’s Standing Committee on Legal Aid and Indigent Defendants to convene a focus group of innovators who have employed thoughtful and exemplary ingenuity to alleviate pressure on indigent defense systems. Eighteen innovators from around the country described actual strategies and programs — many of which have been implemented. The following kinds of reforms were identified: reclassification and diversion; the use of performance standards and guidelines to limit caseloads; broader access to training; enhanced inclusion of the private bar in the pursuit of indigent defense reform; and innovative and unique collaborations among unlikely allies, including joint initiatives by prosecutors and the defense bar. The report produced by the focus group, titled National Indigent Defense Reform: The Solution Is Multifaceted, is available at http://www.nacdl.org/reports.
February 2012 — NACDL adopted a resolution that calls for the complete end to any detention or conviction without counsel. Building on numerous reports sponsored by the Foundation for Criminal Justice, including a recent report on misdemeanor courts in Florida (Three-Minute Justice5) that clearly establishes that detention is more likely without counsel, the policy commits the organization to work to pursue public advocacy and litigation to end practices that impede or deny the prompt appointment of counsel.
Additionally, the policy calls for a revolutionary step forward. It establishes as a fundamental goal the expansion of the right to counsel in every situation in which a plea of guilty to any criminal offense may be entered. The exponential growth of life-altering collateral consequences renders obsolete the “jail sentence” trigger for the Sixth Amendment right to counsel. No person should ever be placed in a situation in which he is induced to plead guilty to a criminal charge without the benefit of counsel. This conclusion is a logical extension of the Padilla, Lafler, and Frye decisions — and must be pursued as a matter of court rule, statute, and constitutional law.6
July 2012 — NACDL adopted a policy that commits the criminal defense bar to support evidence-based release determinations and eliminates reliance upon money bail. Specifically, the policy calls for the imposition of the least restrictive pretrial release conditions and reliance upon financial bond only as a last resort. It also calls for the abolition of commercially compensated surety. The policy recognizes that cash bail is a major contributor to mass incarceration and is often used as a form of ransom to coerce guilty pleas. It also results in longer prison sentences on the back end because so many receive enhanced sentences as a consequence of earlier guilty pleas that were taken to secure release from custody.
July 2012 — The following additional steps were taken by NACDL to celebrate Gideon:
- NACDL published a commemorative edition of The Champion magazine entirely devoted to reflections on the 50th anniversary of Gideon. The magazine highlighted the great victories in the struggle to expand the right to counsel and identified the key challenges that lie ahead.
- The Foundation for Criminal Justice (FCJ) hosted a 50th anniversary Gideon Gala not only to raise funds to support Gideon initiatives, but also to celebrate the decision and the defenders who breathe life into it every day.
- As part of its State Criminal Justice Network Conference, NACDL screened Gideon’s Army to infuse reformers with renewed enthusiasm to support indigent defense reform.
August 2012 — The FCJ provided funding for several indigent defense reform initiatives, including support for reform litigation and juvenile defender trainings.
September 2012 — With the support of the FCJ, NACDL conducted a second series of juvenile training programs to help defenders implement the Graham/Miller decisions banning mandatory life without parole for juvenile offenders. The programs, which built upon an earlier series of trainings conducted in 2011, covered legal, strategic, and practical considerations including instruction on cutting-edge research in juvenile development. The five segments covered the legal and practical challenges to secure implementation of the new decisions, and various aspects of juvenile advocacy including techniques to improve communication with juvenile clients, adolescent brain and developmental science, and strategies to improve bail and sentencing advocacy. These free programs have been watched by more than 1,000 viewers and continue to be downloaded regularly from the NACDL website.7
Throughout the Gideon celebration period, the FCJ supported NACDL’s Task Force on the Restoration of Rights and Status After Conviction. This project focuses on mass imprisonment on the back end. The mission of the task force is to identify the legal barriers that confront the formerly incarcerated. These barriers not only include generalized discrimination and social stigma, but also include a vast network of legal impediments that impede employment, licensing, educational opportunities, voting rights, parental rights, interstate travel, and even volunteer opportunities. The goal of the task force is to identify these barriers as well as laws and procedures that can ameliorate them. The task force has held hearings in Chicago, Miami, Cleveland, San Francisco, and Washington, D.C. Over 100 witnesses have already testified, including representatives of all three branches of state government, prosecutors, defense attorneys, convicted persons, leaders of faith-based communities, business people, bar association leaders, representatives of NGOs, corrections officials, academic experts, and parole and probation officials. Following one additional hearing slated for New York City in May 2013, the task force will develop a precise and ambitious agenda to tear down the legal barriers that have created an ever-growing permanent underclass in America.
Throughout the period, the FCJ and NACDL supported myriad reform efforts. These efforts included providing direct support for indigent defense reform in New York State (Hurrell-Harring), efforts to secure counsel at the first appearance in Maryland and Colorado, litigation and other reform efforts in Michigan, continuing reform projects in Louisiana, and an effort to secure independence of the indigent defense system in New Mexico.
Inspired by the resuscitation of the proportionality analysis in Graham and Miller, the FCJ has funded a national research project to develop a 50-state survey of proportionality or cruel and unusual provisions in state constitutions and related jurisprudence. The data will be made available in a user-friendly database and will be used to promote litigation reform strategies.
November 2012 — The FCJ and NACDL co-sponsored an academic symposium on Gideonat 50 in conjunction with the Washington and Lee Law Review. The program brought together academic scholars and practitioners to explore the right to counsel in criminal prosecutions now and in the future. NACDL Indigent Defense Counsel John Gross presented a paper at the symposium, NACDL President Steven Benjamin delivered keynote remarks, and I was privileged to moderate a panel on the state of Gideon in misdemeanor courts.
March 2013 — NACDL co-sponsored a forum with The Heritage Foundation entitled Gideon at 50: Fundamental Right, Ongoing Challenge. I was pleased to co-host the event with former Attorney General Edwin Meese III. The panel discussed the importance of ensuring access to qualified counsel, continuing challenges that have impeded the realization of Gideon, and innovative measures to achieve the goal of access to counsel. Speakers included NACDL President Steven Benjamin, former North Carolina Chief Justice Rhoda Billings, and Texas Indigent Defense Commission Chair Jim Bethke.
During this anniversary period, in a salute to the heroic lawyers who are the backbone of indigent defense in this country, The Champion profiled indigent defenders.8 These lawyers and their stories of dedication should serve as an inspiration to all.
March 2013 — Recognizing that reformers will need fresh data to propel reform efforts, NACDL Indigent Defense Counsel John Gross has undertaken a major three-part study of indigent defense in America. Part One was released on March 18, 2013 — the 50th anniversary of Gideon v. Wainwright. The report, Rationing Justice: The Underfunding of Assigned Counsel Systems — A 50-State Survey of Trial Court Assigned Counsel Rates, provides the first comprehensive compilation of assigned counsel rates in more than a decade.9 It demonstrates the inadequate compensation rates and caps that reflect a betrayal of Gideon’s promise.
NACDL’s members and supporters can take great pride that the association commemorated the anniversary of Gideon with total commitment and resolve to continue the fight for universal access to qualified counsel for all accused persons. But it is a tough challenge. There are many obstacles — some institutional, some attitudinal, and some financial.
Indeed, as I write this column, cuts to federal defender services threaten to endanger the one bright spot in America’s indigent defense system. A robust, hybrid system that relies upon a healthy mix of public defenders and private attorneys providing public defense pursuant to the Criminal Justice Act has thus far avoided the staggering caseloads that plague state indigent defense systems. Until now, the federal structure has not been afflicted by the internecine struggle between public and private defenders that so often results from chronic underfunding. But staggering cuts that will result in furloughs and layoffs endanger that harmony and threaten to undermine continuity of counsel that is a core aspect of the right to counsel. And so, even as we struggle to improve state systems, we may now have to fight to preserve adequate support for indigent defense on the federal level.
Defense lawyers, irrespective of whether they are privately retained or providing public defense, fight with tenacity to the best of their ability with all the tools at their disposal. They make no distinction in their level of commitment based upon how they came by a client. When defenders take on a case, they are indifferent to compensation or working conditions. They hold a fellow human’s future in their hands and they rise to the challenge, every day, in courtrooms throughout the nation.
And so it must be in the struggle to realize the promise of Gideon. We will do it one case at a time. One issue at time. One reform at time. One innovation at a time. We will bring courage, dedication, and perseverance to the task. That is how we will reform indigent defense. That is how we will combat staggering caseloads and lack of resources. That is how we will end assembly line guilty pleas, “meet and plead” practices, and mass incarceration. Things will change. So now let us focus on Gideon at 51, 52, 53, and beyond.
- See, e.g., Jenna Greene, Gideon’s Promise Still Unfulfilled, Nat’l L.J., Mar. 18, 2013; Jonathan Rapping, A Promise Worth Keeping: Restoring Fairness to America’s Justice System, Huffington Post, Mar. 18, 2013; Paul Butler, Gideon’s Muted Trumpet, N.Y. Times, Mar. 17, 2013; Carrie Johnson, 50 Years After Key Case, Problems Defending the Poor Persist, NPR, Mar. 15, 2013; Andrew Cohen, Eric Holder: A ‘State of Crisis’ for the Right to Counsel, The Atlantic, Mar. 15, 2013; Rick Hampson, You Have the Right to Counsel. Or Do You? USA Today, Mar. 12, 2013.
- Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People’s Justice (2013); Defending Gideon, a film produced by The Constitution Project and the law firm of Arnold & Porter; Gideon’s Army, a documentary to be broadcast on HBO in summer 2013.
- The text of the speech is online at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1303151.html.
- Norman Reimer, After Half a Century, Gideon’s Promise Remains Elusive, The Champion, January/February 2012 at 7.
- Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts is available online at http://www.nacdl.org/reports.
- Read the resolution at http://www.nacdl.org/resolutions/2012mm1.
- Go to http://www.nacdl.org/webcasts for more information.
- Bonnie Hoffman, Kindel and Williamson Defend the Indigent Accused, The Champion, November 2012 at 61; Bonnie Hoffman, Advocates Fight for the Indigent in Tennessee, The Champion, December 2012 at 49.
- Download the report at http://www.nacdl.org/reports/gideonat50/rationingjustice.