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October 01, 2013


by Robert E. Stein

The landmark Supreme Court case Gideon v. Wainright was decided on March 18, 1963, holding that the Fourteenth Amendment to the Constitution requires states to provide counsel to defendants in felony criminal cases if they are indigent and unable to hire an attorney. Fifty years later, we commemorate the anniversary of this case. Few would deny that it has had a significant effect on the conduct of representation in criminal trials in the United States. Few would deny that its promise and its hope have not been fulfilled. Therefore, how we remember the effect of this decision will vary, depending in some measure on where we sit and our own hopes and aspirations for the changes we wanted it to usher in to criminal law practice. Irrespective of our celebrating its successes or lamenting the slowness of its acceptance, it is appropriate fifty years after the decision to take stock of where we are. In selected areas, this is what this issue of Human Rights does.

It certainly is not the only effort at this. On November 19, 2011, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) adopted a resolution committing NACDL to engage in a year-long commemoration of Gideon v. Wainwright, highlighting the association’s resolve to fulfill Gideon’s promise. An issue of its magazine The Champion was devoted to this anniversary. Other national organizations, including the National Legal Aid & Defender Association and the Constitution Project, and many state bar associations have commemorated the anniversary. The American Bar Association and SCLAID, the Standing Committee on Legal Aid and Indigent Defendants, as with many of these organizations, has not waited for the anniversary to act and discuss ways in which the promise of Gideon can be implemented.

This issue of Human Rights also provides different perspectives on the role of counsel in indigent defense.

The article by Buck Files, current president of the State of Texas Bar, provides insights into what a state bar can do to enhance the rights of indigent defendants in their system. Bob Weeks, a career public defender, provides a personal description of life in the defender trenches that speaks to the importance of realizing the promise of Gideon.

Several articles provide an understanding into why so many active in providing representation to indigent defendants believe that the promise of Gideon has not been realized. Tim Young, the chief public defender in Ohio and current chair of the American Council of Chief Defenders, laments that public defenders are underfunded in so many areas of the country that our criminal justice system fails every day to meet the bare minimum of Gideon’s promise. Steven Hanlon has been lead counsel in seeking to have courts recognize that insufficient resources lead to defender overload and the resultant inability of public defenders to effectively represent their clients. Not just lamenting the problem, Hanlon provides insights into how defenders can document the effects of the problems caused by limited resources to obtain relief from courts and others.

Deborah Leff and Melanca Clark, of the Department of Justice, provide an understanding of how the creation of the Access to Justice Initiative has provided a new focus and impetus within the DOJ to strengthen indigent defense systems through the development and implementation of standards, including the often-cited ABA Ten Principles of a Public Defense Delivery System.

Finally, there are three articles that examine ways in which the lessons of Gideon have been extended to other areas. John Pollock examines the importance of providing a right to counsel in important areas of civil law. He writes that “[t]he deplorable state of indigent defense funding and consequent Gideon violations lead to needless and avoidable criminal convictions that have a tremendous impact on defendants’ civil interests, such as housing, employment, and public benefits. . . . Civil litigants who cannot effectively protect their housing or employment interests in court may wind up in the criminal justice system, worsening the indigent defense crisis.”

Lucas Guttentag and Ahilan Arulanantham examine how the principles of Gideon have not always been applied to the range of legal proceedings involving immigrants.

Michael Burke looks at examples of both how the principles of Gideon have been “exported” to other countries that provide counsel to indigent defendants and the efforts by the international community to codify the principle that access to counsel in criminal proceedings, including for those who cannot afford it has, through the International Covenant on Civil and Political Rights, become part of the International Bill of Human Rights.

And continuing a tradition for this publication, the important roles played by public defenders, whether state or federal, are both described and recognized as Human Rights Heroes in this fiftieth anniversary of Gideon issue.

Because the implementation of effective counsel in criminal matters for all, including those who cannot otherwise afford counsel, is still a work in progress, this issue of Human Rights magazine should not be viewed as a final statement but rather a review, albeit a partial one, of how far we have come, how much further we have yet to go, and what some measures are that will move us further along the road. The authors of the articles and sidebars are to be thanked both for the contributions they have made to this issue of the magazine and for their broader dedication to making the promise of Gideon a reality. The degree to which we can move forward from where we are will be a test of whether our legal system can live up to the statement of providing equal justice under the law.