President's Column: Getting around Gideon: The illusions of effective assistance of counsel

Getting around Gideon: The illusions of effective assistance of counsel E.E. (Bo) Edwards

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As we conclude NACDL’s year-long commemoration of “The Right to Counsel: Gideon v. Wainwright at 40,” nothing would please me more than to tell you that America is meeting its constitutional obligation to provide all criminal defendants with timely access to competent counsel. Unfortunately, that is not the reality.

The reality is that in states across the country, systemic neglect and chronic underfunding — which are now being exacerbated by state budget crises — continue to deny the assistance of effective counsel to people who cannot afford their own. The reality is that those accused of crimes are routinely denied their fundamental right of adequate representation before the court. The reality is that the kind of justice you get in America depends upon the amount of money you have in your pocket. The reality is that our system of indigent defense is failing throughout the country.

Let me give you examples from a few states:

Oregon: In 2003, Oregon ran out of money for public defense and the courts. In response, the state shut the court system down on Fridays for three months and deferred thousands of low-level misdemeanors to the new fiscal year, creating a major overload in July 2003. If Oregon voters reject a legislatively-approved tax increase for 2003-‘05, the state will face another $9.9 million indigent defense shortfall. Oregon’s Chief Justice has said that this time, rather than defer cases, he will continue appointing cases until the money runs out. This will necessitate either a judicial branch shutdown or forcing lawyers to take cases for free. Either way, a potential constitutional crisis looms in Oregon.

Virginia: In Virginia, unwaivable fee caps for assigned counsel stipulate a maximum of $112 in any juvenile case, $132 for a misdemeanor punishable by confinement, $1096 for a felony punishable by more than 20 years confinement, and $395 for all other felonies. As James Hingeley, a Virginia Public Defender and NACDL member, recently noted, “Virginians who are too poor to afford lawyers are at the mercy of a one-sided criminal justice system where both privately assigned counsel and public defenders often lack resources necessary to represent their clients adequately.”

Michigan: Michigan is one of only three states in the country in which the state government provides no funds whatsoever for indigent criminal defense at the trial level. In Michigan, indigent defense counsel receives: a maximum of $225 for investigation and preparation of a case in which the defendant faces a prospective natural life sentence; no more than $45 for a single client meeting at the jail, regardless of how many times an attorney needs to meet with the defendant; as little as $108 per day for trial fees; and as low as $54 to handle a motion in its entirety. As applied, the fee schedule has produced egregious results, including cases in which assigned counsel earn an average of $6.14 per hour.

Louisiana: Calcasieu Parish’s part-time public defenders carry an average open caseload of 590 felonies and 150 misdemeanors, and are permitted to carry private cases in addition to their public defender work. The Public Defender’s Office lacks sufficient resources to conduct investigations or secure necessary expert assistance. Defendants may wait six months before ever meeting an attorney. According to Lake Charles attorney and NACDL member Tom Lorenzi, “Calcasieu Parish is just a microcosm of what is happening all over the state of Louisiana.”

How can this be?

In this post-Gideon era, the right to counsel is no longer in question. Gideon established that defendants have a right to counsel, and that if they cannot afford an attorney, one will be appointed to their cases. What is in question in this post-Gideon era is an indigent defendant’s ability to access effective counsel. Government support of this fundamental right has not kept pace with its demands.

Because of extremely low pay rates and overwhelming caseloads, the representation provided to the vast majority of indigent defendants cannot, as a practical matter, be regarded as a minimally adequate defense. Fees to appointed counsel are patently inadequate, public defenders cannot dedicate the time necessary to each case, and money for investigations is often non-existent. In this context, even the most competent attorneys cannot overcome the lack of resources to ensure justice for their clients.

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A warm body with a bar card may satisfy the state, the prosecution, and the general public that justice is being served, but both the defense bar and those to whom counsel is appointed know that the deck is stacked against indigent defendants in these overburdened systems. What’s more, they know that this uneven playing field skews the system into one that dispenses convictions, not justice.

Those who cannot afford a lawyer are far from the only ones who suffer as a result of this constitutional failure. The quality of American justice suffers by incarcerating the accused for exceedingly long periods before trial; clogging court dockets with unsupported cases; assigning disproportionate sentences because of the inconsistent quality of counsel; convicting the wrong people (and thus allowing the guilty to go unpunished); and necessitating post-conviction appeals for unjust verdicts. Perhaps the most important result of this Constitutional failure, however, is the overall erosion of the justice system’s integrity – and the public’s attendant loss of faith in that system.

NACDL’s Response

NACDL has a long history of fighting for adequate resources for indigent defense. I’m proud to report that under our Indigent Defense Counsel, Catherine Beane, these efforts are proceeding unabated. Catherine is traveling the country, working with lawyers, judges, defendants, legislators and the media to create state-specific, multi-pronged strategic approaches to upholding Gideon’s promise. Teaming up with partners such as the National Legal Aid & Defender Association, the American Bar Association, and the Brennan Center for Justice, Catherine and NACDL’s activist Indigent Defense Committee are critical players in this nation-wide effort to ensure the integrity of our justice system.

Through a strategy of public education, legislative advocacy, coalition building and strategic litigation, NACDL is working hard to bring this increasingly acute problem to America’s attention. Catherine and her partners cannot, however, do it alone. Nor can the criminal defense bar. As the ineffectiveness of criminal defense counsel threatens the integrity of our entire system of justice, this problem is one that deserves the attention of every lawyer, every prosecutor, every judge, every legislator, and every governor in the country – as well as the public at large.

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As NACDL’s year-long commemoration of Gideon comes to a close, our commitment to indigent defense reform is only getting stronger. Forty years after Gideon, its promise remains unfulfilled. Yet I promise you that NACDL will fight to realize Gideon’s promise until every defendant in the country, regardless of ability to pay, is ensured the assistance of properly resourced, competent counsel.
The Constitution demands no less.