From the President: Is Gideon on Life Support? There Are Signs of Life.

NACDL has started an initiative aimed at securing the fundamental right of effective representation of counsel for the 80 percent of defendants in the criminal justice system who rely on representation provided by a government entity.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

The “promise” of Gideon v. Wainwright has turned out to be more on the order of “someday maybe.” But, there are positive signs on the litigation front, and NACDL has started a new initiative aimed at securing the fundamental right of effective representation of counsel for the some 80 percent of the defendants in the criminal justice system who rely on representation provided by a government entity.

In Gideon v. Wainwright, writing for the majority, Justice Black observed:

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.1 

Justice Black acknowledged that a defendant’s need for a lawyer is nowhere better stated than by Justice Sutherland in Powell v. Alabama:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.2 

And so it was that the Supreme Court, in Gideon, recognized “the fundamental right” of an accused facing a felony charge to be afforded legal representation free of charge. In Argersinger v. Hamlin3 the Court later extended the right to counsel to any case where the defendant may be incarcerated.

If the measure of success of the implementation of Gideon is whether most defendants facing a potential loss of liberty are provided with the assistance of counsel sufficient to adequately address the legal issues identified by Justice Sutherland, then “the promise of Gideon” is indeed an empty one. A later opinion by the Supreme Court almost entirely blocked effective legal challenges to deficient indigent defense delivery systems. In United States v. Cronic,4 the Court’s unfortunately narrow holding established that in order to prevail on a claim of deficient counsel, a defendant must show that counsel’s representation was lacking in some manner that likely affected the outcome of the trial process in that particular case, rather than that good representation was not provided generally. Showing that the lawyer lacked the training, experience, or legal ability that would be reasonably required to represent an accused for the specific offense was not enough without a showing of some material error.

The holding relegated the accused who was poorly represented to first suffering the consequences of the lawyer’s shoddy performance and then raising the matter in post-judgment proceedings. In a very few states, Louisiana for one, the issue can be raised by pretrial motion. By requiring that a defendant must point to a particular deficiency in counsel’s performance and show that it likely affected the outcome of the case, Cronic foreclosed systemic challenges to indigent defense systems since it would be virtually impossible in most circumstances to show prior to the conclusion of a case in the trial court that counsel’s performance would be deficient to a degree that the outcome would be affected. After all, the evidence of guilt might just be overwhelming and there would not be much for a lawyer to do. See the Fifth Circuit panel decision in Burdine v. Johnson — the notorious sleeping lawyer case — a decision that was thankfully rectified by the en banc court.5 

The Supreme Court in Cronic left only narrow grounds for a systemic challenge or, as the Fifth Circuit eventually found in Burdine, a challenge based on counsel’s performance in an individual case being so deficient as to create a presumption of ineffective assistance relieving the defendant of the burden of demonstrating actual harm. The Cronic court wrote:

There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.6 

Thus, Cronic created a legal environment in which Gideon has only a weak pulse. Yes, a state must appoint a lawyer for the accused. The lawyer’s efficacy, however, will almost always be judged only by the standard of whether there was an error made that mattered in a particular case. That determination is, of course, made after the financial and emotional costs of a trial have been incurred and when inertia does not favor a positive outcome for the defendant. And, unless every case is challenged post-trial, there is no way to know in how many cases in a given system representation fails to clear even this lowest of bars.

Where does this leave defendants when the lawyers provided to them are operating in a system where caseloads are unreasonable, adequate investigative and expert assistance are not provided, and counsel is compensated in a manner that discourages aggressive representation? The result has been that, in many jurisdictions, the system in place for providing counsel to indigent defendants is a mockery of the lofty language and holding of Gideon. Without any effective deterrent, the government authorities with responsibility for providing counsel have continued to underfund and understaff public defender offices. Assigned counsel systems often pay ridiculously low rates or resort to contract systems awarded to lawyers who will handle the most cases for the lowest price.

The persistent sorry state of indigent defense has produced some ironic “good news and bad news.” In the past few years the courts have begun to recognize that some indigent defense delivery systems are so bad that they fall within the exception set out in dicta in Cronic because they constitute “complete denial of counsel” or they entirely fail “to subject the prosecution’s case to meaningful adversarial testing.” The good news associated with this really bad news is that these systems have been successfully attacked in systemic litigation. Examples are Wilbur v. City of Mt. Vernon and Hurrell-Harring v. New York. In Wilbur,7 a federal district judge found that the city of Mt. Vernon had established and maintained a contract lawyer indigent defense system that by its very design operated to deprive indigent defendants of their Sixth Amendment rights. Hurrell-Harring8 proceeded on a similar theory, challenging the systems in five New York counties. Although that case ultimately settled favorably for the plaintiffs, pretrial appellate court rulings cleared the way for the systemic challenge to proceed rather than limiting the remedy to attacks on attorneys’ performance in individual cases.

Wilbur and Hurrell-Haring were the work of the ACLU, its state affiliates, and law firms that agreed to offer their services pro bono. Most recently the ACLU has filed suit in Idaho, challenging its statewide indigent defense system.

It is sad to say it, but things have gotten so bad on the indigent defense front that things are looking increasingly positive for litigation challenging the defective systems. And, NACDL is now poised to play a more active role in planning and executing a litigation strategy as a last resort in some jurisdictions. Last year NACDL received a major grant from Koch Industries in support of its efforts to address the woeful state of indigent defense in this country. The initiative includes both training and reform components. NACDL’s role in the reform component will be to identify the good aspects in some systems and determine whether they can be replicated elsewhere as well as identifying those systems that are wholly inadequate. We will partner with other organizations, such as the ACLU and Sixth Amendment Center, to develop strategies to improve those inadequate systems so that they provide indigent defendants with competent representation. Litigation will be among the options, but encouraging policy makers to undertake reform efforts will usually be the first effort. Part of that effort will be the publicizing of details of the current system to raise public awareness of the injustice.

Any reform strategy that we pursue will require the support of our members. Our past experience has shown us that often there is strong resistance to change by some in the criminal defense bar who have a vested interest in the status quo. In order for a reform effort to succeed, it must be actively supported by the most respected members of the local criminal defense bar. Those lawyers are invariably members of NACDL. As our efforts move forward, we will be reaching out to you for your help.


  1. Gideon v. Wainwright, 372 U.S. 335 (1963).
  2. Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
  3. Argersinger v. Hamlin, 407 U.S. 25 (1972).
  4. Unites States v. Cronic, 466 U.S. 648 (1984).
  5. Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001).
  6. Cronic, 466 U.S. at 658-59.
  7. Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013).
  8. Hurrell-Harring v. New York, 2010 WL 1791000 (N.Y. 2010). See the settlement agreement at
About the Author

A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.

E.G. Morris
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703
Fax 877-497-8347

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