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On January 8, 1962, Clarence Earl Gideon filed a pro se petition with the U.S. Supreme Court, and with that filing he forever changed America’s legal system. When the Court decided the case 14 months later, for most persons accused of serious crimes the notion of fairness was redefined. No longer was the Sixth Amendment right to counsel available only for those with the means to afford it; it was there for everyone charged with a felony. In the years since, the right has been expanded to include many misdemeanors and juvenile delinquency proceedings. The right has also been clearly defined as not just a right to any counsel, but rather to effective counsel.
The Gideon decision rightly belongs in the pantheon of the most important events in the jurisprudential history of the world. The notion that the state must provide the accused with an attorney is now firmly rooted throughout much of the world.1 One can never lose sight of just what an extraordinary concept this is: the same government that seeks to condemn the accused must assume the cost of providing a professional advocate to challenge those efforts.
This past November NACDL’s Board of Directors resolved to commemorate Gideon’s Golden Anniversary during the period that will span the anniversary of the filing of the petition, through the anniversary of the decision itself, March 18, 2013.2 During that time, NACDL, the Foundation for Criminal Justice, and various committees will celebrate this historic victory for human rights in myriad ways. But the resolution also recognizes that far too much remains undone.3
As much as Gideon was a promising breakthrough, it remains a promise unfulfilled. It defined a tantalizing, but elusive dream. Such is often the case when the Court declares the existence of a right, but fails to provide a specific remedy.4Gideon compelled the states to provide counsel, but it neither prescribed nor described a mechanism to pay for it. And while the Strickland5 decision interpreted Gideon to mean that an accused is not just entitled to any counsel, but rather effective counsel, it provided a retrospective test for prejudice that most often creates insuperable barriers for a convicted person who has not been adequately represented. “Ineffective assistance of counsel” is an extreme constitutional standard that masks most instances of inadequate representation. And truly adequate representation is often unattainable when those who represent the indigent must do so with insufficient resources and staggeringly high caseloads.
The fact is that the indigent defense system in the United States remains in a state of perpetual crisis. The magnitude of the crisis ebbs and flows. It is driven by economic cycles and the nation’s obsession with the use of criminal prosecution as a tool for social and economic regulation. As the economic hardship of the prolonged recession takes its toll, the capacity to hire qualified counsel diminishes, vastly increasing the pressure on indigent defense providers. At the same time, resource-starved states, counties, and localities cut vital funding and the nation’s vast network of overcriminalization places unreasonable burdens upon the criminal justice system,6 which exacerbates the crisis.
To resolve this crisis, the profession must seek solutions that reject substandard representation as the norm. While recognizing that even in the best of times, funding for indigent defense is always the last priority, the criminal defense bar in particular must pursue a menu of reforms that will ensure that quality representation throughout the entire criminal process is not negotiable. To make that case, innovators must demonstrate that robust defense advocacy is not only a fundamental right, it is also a smart and cost-effective remedy.
Here are some challenges that must be addressed to fulfill the promise of Gideon:
- No accused person should ever face a bail or bond decision without the presence of counsel.7 This is one reform that almost certainly can save money. The costs of unnecessary pretrial incarceration far exceed the costs of providing an advocate that can advocate for viable and prudent alternatives to detention.
- Caseloads must be limited. Lawyers, supervisors, and heads of offices must rely on ethical standards to resist unmanageable caseloads, and litigate to end them.8 And the entire criminal defense bar — indeed the entire profession — must support these efforts.
- Except in rare circumstances, lawyers should advise clients not to plead guilty until the lawyer has had an adequate opportunity to investigate the law and facts of the case, and consider all alternatives that can avoid any kind of criminal disposition.9 Indigent defense providers must not become institutionally complicit in substandard representation by turning our courts into plea mills simply to satisfy systemic pressure to dispose of cases.
- Every indigent defense system must be independent from political and judicial influence.10 Accountability and integrity must be maintained, but expediency must not trump quality and client-centered representation.
- There must be a robust role for the private bar as participants in the indigent defense infrastructure and as advocates for quality. The private bar plays a critical role in providing indigent defense services, both as assigned counsel and via contract systems. In many ways, however, this is the least-supported component of the indigent defense system. Inadequate compensation rates and arbitrary caps foster the same excessive caseloads and substandard practice that can afflict overloaded institutional providers. Private indigent defense systems must be subject to quality standards, caseload management, and meaningful peer review. At the same time, members of the private bar, both as representatives for the indigent and as advocates for indigent defense system, must take the lead in pursuing these reforms. Additionally, because private lawyers who participate in indigent defense often have minimal support staff and limited access to ancillary services, where support resources can be provided, they should be made available to all providers, irrespective of whether the provider is an individual or an institutional defender service.
- In an area of mass prosecution and mass stigmatization through the tyranny of a burgeoning regime of collateral consequences, the legal profession must rethink how it educates the criminal defense bar, starting at the law school level and continuing throughout a lawyer’s career. Public and private defenders must be trained to recognize fully the panoply of concerns that are implicated by a criminal charge. “Meet and plead” practices must end. Clients are entitled to advocates who can assist them in addressing the underlying pathologies that contribute to criminal accusations, and who can help them navigate the complex network of ancillary sanctions that may be triggered by even the most minor criminal conviction. This is not possible without a proper educational foundation and continuing evaluation that ensures competency throughout a lawyer’s career.
This is a challenging menu. But criminal defense lawyers are accustomed to taking on great challenges. And so is NACDL.
In anticipation of the Gideon anniversary, the Association has already launched several initiatives. Building on a convening that considered the future of the defense function in the wake of the Padilla decision,11 NACDL has partnered with the National Legal Aid and Defender Association to establish five working groups that will study the following: (1) policy choices that can reclassify and divert cases out of the criminal justice system; (2) the use of ethical rules and practice standards to ensure that the defense bar is able to access the resources necessary to ensure full compliance with the letter and spirit of Padilla;( 3) the development of procedures and systems to collect and use data to define and set benchmarks for quality legal representation; (4) means to cultivate partnerships with the immigrant defense community to develop methodologies for equipping front line defense attorneys with the expertise necessary to understand the immigration implications of every criminal charge; and (5) doctrinal and clinical educational practices, and modes of certification and continuing certification that can ensure universal access to first-rate criminal defense representation.
NACDL also partnered with the ABA’s Standing Committee on Legal Aid and Indigent Defendants to co-sponsor a focus group on January 9, 2012, that explored various innovative strategies designed to relieve the pressure on the nation’s indigent defense system.12 Additionally, NACDL will continue to pursue systemic reform in numerous states, and will increase its efforts to support the entire indigent defense community — public and private, state and federal. Finally, NACDL has created a Task Force on Pretrial Justice that will promote reforms to ensure universal availability of counsel at the commencement of a criminal proceeding.13
A milestone anniversary is an occasion to reflect upon the past and celebrate momentous achievements. But it also presents an excellent opportunity to correct mistakes and set new goals. Accordingly, NACDL will joyfully celebrate the miracle of Gideon with a steely determination to finish the job that Clarence Earl Gideon began 50 years ago this month.
- More than 65 national constitutions guarantee the right to counsel in criminal proceedings. The explicit right to the appointment of counsel when the accused is indigent is recognized by the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment, as well as 24 national constitutions. See M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235 (1993).
- Read the resolution at http:// www.nacdl.org/GideonBdResolution.
- Id. “The lack of adequate financing for pubic defense increases pretrial detention, increases the length of sentences, increases the pressure on defendants to plead guilty, inevitably leads to wrongful convictions, and results in a loss of confidence in the criminal justice system.”
- Brown v. Board of Education, 347 U.S. 483 (1954), struck down the notion of “separate but equal.” But it was not until the civil rights and voting rights legislation more than a decade later that de jure segregation was ended. And the struggle to fully eliminate de facto segregation continues to this day.
- Strickland v. Washington, 466 U.S. 668 (1984).
- See Jim E. Lavine, Faces of Overcriminalization, The Champion, November 2010 at 5.
- See Douglas L. Colbert, Prosecution Without Representation, 59 Buffalo L. Rev. 333, 383-412 (2011). Professor Colbert conducted a national survey and found that only 10 states guarantee representation at the initial bail assessment, while 10 states deny counsel at the initial bail proceedings uniformly throughout the state and 30 states assigned appointed counsel in select counties only. Professor Colbert (University of Maryland School of Law) and NACDL Board Member Jay Clark (Cincinnati, Ohio) co-chair NACDL’s Task Force on Pretrial Justice Reform.
- For an excellent discussion of the phenomenon of excessive caseloads and a comprehensive prescription for how to address the problem, see Securing Reasonable Caseloads — Ethics and Law in Public Defense, by Norman Lefstein, American Bar Association Standing Committee on Legal Aid and Indigent Defendants (2011). Download the book at http://www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing_reasonable_caseloads.authcheckdam.pdf.
- A recent report from New York, a jurisdiction that is widely believed to have one of the better indigent defense systems, found an alarmingly high rate of guilty pleas at arraignment (Report of the Indigent Defense Organization Oversight Committee to the Appellate Division First Department for Fiscal Years 2008-2009). Read the report at http://www.courts.state.ny.us.
- The need for independence is the first principle set forth in the ABA’s Ten Principles of a Public Defense Delivery System. ABA Standing Committee on Legal Aid and Indigent Defendants, approved by the ABA House of Delegates, February 2002.
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
- The results of this focus group will be discussed in depth in a future Inside NACDL column.
- As noted (see note 7, supra), the task force is co-chaired by Professor Douglas Colbert and Jay Clark. The other task force members are Adele Bernhard, Brian H. Bieber, Jenny Carroll, Jason Downs, Jean M. Faria, Christopher Flohr, and Melanie Morgan.