January/February 2003

In Appreciation of the ABA's Gideon Efforts
By

I graduated from law school in 1961, two years before the United States Supreme Court decided Gideon v. Wainwright. Thus, during most of my legal career, I have had the honor and privilege to both participate in and observe this nation’s 40-year effort to implement the magnificent words of Justice Black who said, “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. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

As we fast approach the 40th anniversary of Gideon, and Justice Black’s inspiring words, I pause to salute and praise the American Bar Association (ABA) for its important work over the past four decades in its efforts to lead the nation’s lawyers to fulfill the promise of Gideon.

During the many events planned in March 2003, much will be spoken and written about the “unfulfilled promise of Gideon” and the disappointment of many that in the 40 years since Gideon we have left too much to accomplish for the future. While I share the view that we must make a deeper commitment to “justice for all” in future years, I pause to reflect and report on my personal views and praise the American Bar Association’s many substantial efforts over the past 40 years.

In May 1963, the American Bar Association and the American Law Institute began a major effort to formulate a set of minimum standards in the field of criminal justice. Then-Chief Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit was appointed the chairman of an American Bar Association special committee to supervise the undertaking of the proposed criminal justice standards project. After many years of work and study, the full set of 17 standards were approved by the House of Delegates and published in early 1973. In 1974, Chief Justice Warren E. Burger described the standards as the “single most comprehensive and probably the most monumental undertaking in the field of justice ever attempted by the American legal profession in our national history.”

As we know, some of the chapters have been revised and updated to reflect decisions of the United States Supreme Court, ABA policy, or developments in criminal justice. Many of the chapters have particular meaning regarding implementation of Gideon, but the two most relevant chapters, I believe, are Chapter 4, “The Defense and the Prosecution Functions” (approved by the ABA House of Delegates in February 1991 regarding the defense function and in February 1992 regarding the prosecution function) and Chapter 5, “Providing Defense Services” (last revised and approved by the House of Delegates in August 1990).

In addition to this seminal work, in 1989 the ABA House of Delegates adopted “Guidelines for the Appointment and Performance in Death Penalty Cases,” which is currently under proposed revision. An affirmation of Gideon occurred when the House of Delegates approved the ABA Ten Principles of a Public Defense Delivery System, sponsored by the Standing Committee on Legal Aid and Indigent Defendants (SCLAID) in February 2002.

Exactly 20 years after Gideon, the ABA, in cooperation with the National Legal Aid & Defender Association, held a hearing in Boston to assess the progress of efforts to comply with Gideon’s mandate. At that meeting, Robert D. Raven, then-SCLAID Chairman stated that in many parts of the country, indigent defendants are not being provided competent counsel due to lack of adequate funding for such services. Raven stated “this bleak picture, twenty years after the Gideon decision, is a severe blot upon the fabric of the nation’s constitutional and historic commitment to a free society with justice and liberty for all.”

Chairman Raven then announced that the American Bar Association had just taken further steps to respond to Gideon by creating “The Bar Information Program” (BIP), which was designed to mobilize the organized bar on the state and local levels to support measures to improve indigent defense services. The Bar Information Program with the participation and support of other ABA sections and committees such as the General Practice Section and the Criminal Justice Section began and remains one of SCLAID’s most important programs.

In July 1985, The Spangenberg Group (TSG) was established in Newton, Massachusetts with the goal of helping to improve the delivery of legal services to low income persons in both civil and criminal cases. As TSG president, I recall that our first contract was with the ABA’s BIP to provide technical assistance and information to state and local jurisdictions concerned about improving their indigent defense system. Now entering its 20th year, the 18th with TSG, this ABA program has performed work in all 50 states at the request of state and local bar associations, state and local governments, grass roots community groups, public defenders and other indigent defense organizations.

I have been told frequently that the work performed by BIP at the local level has contributed to successful reform all over the country. I myself have learned, along with my experienced and committed staff, that the interest and involvement of the ABA in these projects has made a significant difference to the field.

The BIP project that began 20 years ago would never have occurred without the commitment from SCLAID and the leaders of the ABA. Neither would it have succeeded without the genius and constant leadership of people such as Bob Raven, Jim Neuhard, Shelly Portman, Norman Lefstein, Terry Brooks, Vince Perini, John Arango, Lynn Sterman and so many others.

For 1983, on the 20th anniversary of Gideon, the U.S. Department of Justice, Bureau of Justice Statistics reported that state and local government had spent approximately $625 million or a per capita cost of $2.76 on indigent defense representation in the state courts of this country. In 2003, we do not have a statistically valid expenditure figure for the 50 states, however, my best estimate, based upon reliable data from two-thirds of the states, is that the figure will exceed $3 billion dollars and the estimated per capita cost will exceed $10. In 1982, 17 states provided 100 percent state funding for indigent defense. Today that number is twenty five. The same year, 11 states had a state commission or state body responsible for the delivery and oversight of indigent defense services. Today the number is 26. As we re-double our efforts in the future to move closer to the challenge of Gideon, I am certain that the ABA will help to lead this effort.

Robert L. Spangenberg is president of The Spangenberg Group in West Newton, MA. (617) 969-3820 E-mail: rspangenberg@spangenberggroup.com


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org