October 01, 2013

The Right to Counsel: An Unfulfilled Constitutional Right

by Tim Young

March 18, 2013, marks fifty years since the U.S. Supreme Court’s right to counsel decision in Gideon v. Wainwright. The U.S. Supreme Court requires states to implement the right to counsel by providing a lawyer to a person too poor to hire an attorney when charged with a crime.

Fifty years after the Supreme Court interpreted the Sixth Amendment to mean “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” Gideon remains an unfulfilled right. 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.

When speaking at the ABA’s National Summit on Indigent Defense in 2012, Attorney General Eric Holder said the “need to take action has never been more clear—or more urgent. And that’s true nationwide. Across the country, public defender offices and other indigent defense providers are underfunded and understaffed. Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads, and inadequate oversight. As a result, too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed. Too many children and adults enter the criminal justice system with nowhere to turn for guidance—and little understanding of their rights, the charges against them, or the potential sentences—and collateral consequences—that they face. Some are even encouraged to waive their right to counsel altogether.”

And while the U.S. Supreme Court should be lauded for its decision in Gideon to require counsel, little has been done across the country to enforce compliance and even less to enforce the quality of counsel. The right to counsel, to have any meaning, must also require quality. The U.S. Supreme Court established in Strickland v. Washington that counsel must be effective, but the measure of quality is extremely low.

All manner of poor performance that would shock the average citizen has been held to be above the standard put forth in Strickland: lawyers sleeping during capital trials, openly racist lawyers representing black clients, lawyers with no experience representing capital clients, and even lawyers being drunk during trial. If a lawyer can be drunk or asleep and the outcome be deemed “fair,” one must ask what horror of bad lawyering is required to be deemed unfair? The right to counsel, to have any meaning, must mean qualified and trained counsel.

Today, with indigent defense underfunded and understaffed, the particulars of the crisis are predictable.

In the report Minor Crimes, Massive Waste, the National Association of Criminal Defense Lawyers summarized the crisis in our nation’s misdemeanor courts:

Across the country, lawyers who are appointed to represent people charged with misdemeanors have caseloads so overwhelming that they literally have only minutes to prepare each case:

  • In at least three major cities, Chicago, Atlanta, and Miami, defenders have more than 2,000 misdemeanor cases per year.
  • According to a response to a survey, in Dallas, Texas, misdemeanor defenders handle 1,200 cases per year.
  • One attorney working in federal magistrate court in Arizona reported in a survey response that misdemeanor attorneys there carry 1,000 cases per year.
  • In response to the survey, one Tennessee defender reported that the average misdemeanor caseload per attorney in his office was 1,500 per year. Two other defenders in Tennessee reported handling 3,000 misdemeanor cases in one year, which is 7.5 times the national standard.
  • In Kentucky, the defenders were assigned an average of 436 cases per lawyer in fiscal year 2007, of which 61 percent were misdemeanors. In other words, each defender had 170 felonies, which is more than a full caseload for one attorney, plus 266 misdemeanors, which by itself is two-thirds of a full-time caseload under the national standard.

There is no justice in denying counsel. There is only a violation of one of our most cherished and fundamental human rights—freedom. For example, in Mississippi, a woman was jailed for shoplifting $72 and spent fourteen months in jail, eleven of which were before a lawyer was appointed. This incarceration cost the taxpayers of Mississippi over $12,000. Multiply this injustice by the hundreds or thousands of times it occurs each day across the country and the enormity of the harm is evident. And the cost is enormous, both economically and morally.

As important as providing counsel is, it is equally important that counsel be independent and well funded. In short-sighted efforts to control costs, states corrupt the right to counsel with low-bid contract systems, flat-fee systems, and systems where an elected judge picks and authorizes the amount paid to the defense attorney. In all of these systems, counsel has little loyalty to the client but is incentivized to deal with the cases as quickly as possible or by making sure to keep the judicial-appointing authority satisfied. No one in this country would call a sporting event fair where the referee picked the player on one side of a match and then chose how much that player was paid after the game concluded. Yet, every day, in parts of this country, judges pick defense lawyers and then choose how much they should be paid and call it justice.

But even if a person is given counsel and the counsel is effective, it is vitally important that counsel be appointed early in the proceedings. Many courts appoint counsel so late that it is all but meaningless. The U.S. Supreme Court in Rothgery v. Gillespie County held that a criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversarial judicial proceedings that trigger attachment of the right to counsel.

Unfortunately, across this nation it is the exception rather than the rule that a lawyer is present at a person’s first appearance. The result is clients regularly plead guilty without any opportunity to first speak with counsel. These guilty pleas will result in jail for many and lifelong consequences for all.

We are a nation of laws. Yet, the constitutional law that requires counsel, fundamental to the promise of justice for all, is not being fully obeyed. Because of this violation of the law, clients are harmed, costs increase, public confidence is lessened, justice is undermined, and our individual freedoms are violated.

There are substantial benefits to society when public defense systems are properly funded. Public defenders who are competent, who have manageable workloads, and who have professional independence can ensure that the rights guaranteed by our Constitution are protected and can ensure that no one’s liberty is taken unless and until he or she is proven guilty. Public defenders can lower costly incarceration rates for counties and states by advocating for pretrial release and reduced sentences. Public defenders increase efficiencies and prevent expensive wrongful convictions. Adequately funding public defense is a matter of fundamental fairness. The government always comes to court well represented by counsel and, not surprisingly, the government’s lawyers are regularly better funded and have better access to resources than the public defender.

The right to counsel is so central to our concept of ordered liberty that it is a fundamental American value. It is neither a liberal nor conservative value. It is a value we fought for the moment our country was formed. John Adams, our nation’s second president, said, “it’s of more importance to community that innocence be protected, than it is, that guilt should be punished.” Counsel is the most important guarantee of our Bill of Rights because it is through counsel that our rights are defended. Liberty, free speech, privacy, and the right to worship have all been at issue in criminal cases. Counsel is not a luxury. The constitutional right to be heard is meaningless if it does not include the right to be heard by effective counsel.

Tim Young

Tim Young has been the Ohio public defender since January 1, 2008, after serving as a county public defender for fourteen years. He has led reform efforts for indigent defense in Ohio, and he started the Ohio Wrongful Conviction Project, a non-DNA exoneration project. Young is presently chair of the American Council of Chief Defenders.