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January 01, 2004

Gideon's Unfulfilled Mandate: Time for a New Consensus

by Virginia E. Sloan, Cait Clarke and Daniel Engelberg

Forty years after Gideon v. Wainwright, 372 U.S. 335 (1963), the landmark Supreme Court case establishing the right of counsel for indigent defendants in criminal trials, the public occasionally glimpses the gap between Gideon's mandate and reality. There are still places in this country, for example, where indigent defendants sit in jail for months without seeing a lawyer. In Mississippi, Walter Williams was not appointed a public defender until the day of his arraignment-more than eight months after his arrest and incarceration. Still others are not even given access to an attorney at all. In some parts of Georgia, defendants are told to speak first with prosecutors and urged to plead guilty before being allowed to talk to a defense lawyer.

In other parts of the country, the problem for poor defendants is not the lack of a lawyer but the lack of a competent lawyer. Some defendants, like George McFarland, whose publicly funded lawyer slept through much of his capital murder trial, have attorneys who blatantly damage their cases. Others, like several Illinois inmates whose death sentences were commuted to life by Governor George Ryan's commutations in 2000, are represented at trial by inept attorneys who are subsequently disbarred or suspended.

Of course, the responsibility for shortchanging the indigent client is never the lawyer's alone. The buck stops with the government authorities responsible for designing and funding our indigent defense system, whose job ostensibly is to ensure that lawyers are assigned indigent cases and have the time, tools, and training necessary to deliver quality representation.

Recreating the Bipartisan Spirit

There is a strong consensus across political lines that, as U.S. Supreme Court Justice Hugo Black wrote in 1956, "there can be no equal justice where the kind of trial a man gets depends on the amount of money he has." In 1963 twenty-two state attorneys general were asked by the State of Florida to join in opposing Clarence Earl Gideon's right to counsel before the Supreme Court. However, led by then-Minnesota Attorney General (and later senator and vice president) Walter Mondale, they decided instead that the only decent course was to file a brief supporting Gideon. Their willingness to support Gideon's petition was central to the Court's unanimous judgment in favor of Gideon, and to the overwhelming national acceptance of the right to counsel-at a multibillion dollar cost to taxpayers-in the years immediately following. The unmistakable impression around the country was that ensuring a fair day in court for poor people accused of crimes was not solely in the interests of the defendants but essential for everyone-including the officials whose job is to punish lawbreakers-because it ultimately represents the quality of our justice system and our democracy.

In response to a growing recognition of Gideon's uncompleted mandate, the Constitution Project and the National Legal Aid and Defender Association (NLADA), both national nonprofit organizations, have created a new initiative to review the status of indigent defense systems throughout the nation and consider what types of improvements may be necessary. This initiative will build on the same bipartisan spirit that laid the foundation for Gideon and, through a coming together of powerful, diverse voices, including Walter Mondale as a co-chair, will seek a consensus for reform. There will be two basic stages of the project: first, an examination of the precise nature and scope of the problems confronting indigent defense in the United States, and second, the development, by a group of distinguished citizens, of polices and strategies for remedying the identified deficiencies.

What Gideon Left Out

During a March 2003 symposium to mark Gideon's fortieth anniversary, Abe Krash, one of Gideon's lawyers, noted that in 1963 even the most dedicated reformers did not appreciate how much the Supreme Court's decision neglected to say. Gideon did not deal with several crucial issues: what constitutes adequate funding for indigent defense; what effective indigent defense systems should look like; and what standards of quality should be required of a publicly funded lawyer.

Gideon gave states no guidance about how to manage their indigent defense systems. As a result, the nation has a patchwork of systems that lack centralization, uniformity, and clear standards of quality. In many courtrooms throughout the country, defendants are given underpaid defense attorneys who have neither time nor resources to devote to their cases. Many of the lawyers have no interest in or dedication to criminal defense. As a Department of Justice (DOJ) report stated in 2000, because of the combined forces of severe underfunding and weak organizational structures, "Indigent defense in the United States today is in a chronic state of crisis."

A Crisis of Funding

Nationwide, most state indigent defense programs, with a few notable exceptions, are woefully underfunded. The odds are stacked against an indigent person accused of a crime-largely as a result of extreme disparities in funding for prosecutors and publicly funded defenders. A 1990 DOJ report found that nationally, three times as much was spent on prosecution as on indigent defense-a continuing pattern, according to recent figures from states such as Delaware and Kentucky.

In states where the money for indigent defense funding comes mostly from county coffers, the funding discrepancies for the two sides are especially extreme. The chancery clerk of Quitman County, Mississippi, told USA Today, "In every criminal case, it's like fielding a high school team to play the Green Bay Packers." Kevin Johnson, How Good a Defense Should a Suspect Get? USA TODAY, Apr. 29, 2003, at 1A.

In 1999 Quitman County sued the state to help with indigent defense funding, and a trial judge recently urged the legislature to fix the funding problems. The problems in Quitman County are symbolic of those in poor jurisdictions nationwide. As a result of chronic underfunding, lawyers for the poor in many parts of the country have few resources for essential parts of a criminal defense. Without necessary resources, cases cannot be investigated, experts cannot be hired, and critical motions cannot be filed. Overworked and understaffed attorneys lack either the time or the energy necessary for an adequate defense. The result can be that little or no defense is offered in a "meet 'em and plead 'em" system. In California, one contract defense lawyer said in a deposition that he was proud of the fact that he pleads 70 percent of his clients guilty at the first court appearance, after having spent only thirty seconds explaining the prosecution's "offer." NO EXCEPTIONS: A CAMPAIGN TO GUARANTEE A FAIR JUSTICE SYSTEM FOR ALL, VOLUME 3: THE NEED FOR INDPENDENT PUBLIC DEFENSE SYSYTEMS (July/Aug.), available at

A Crisis of Structure

Many of the same problems also result from the structure-or lack thereof-of indigent defense systems. States generally deliver publicly funded services in three basic ways. Some jurisdictions have a staffed public defender office with employees on salary. More than half of the nation's counties appoint private attorneys, often through an unstructured ad hoc process. Other locales use a contract system in which individual attorneys or firms bid to provide some or all of the public defense services.

Any system, whether public defender, contract, or assigned counsel, can deliver quality representation if properly run according to national standards. But these arrangements can be horribly abused-most commonly by underfunding. Contract systems in which public defenders are paid a flat fee for each case may create an incentive to dispose of cases quickly without investigation or filing needed motions. Time, resources, and motivation can also be lacking for appointed lawyers in jurisdictions with low hourly rates, arbitrary fee caps, or judges with untrammeled discretion to cut or reduce pay for arbitrary reasons (such as the lawyer's failure to move cases fast enough). Recent budget cuts in Minnesota doubled the workload of a public defender who had planned to spend the rest of his career in his job. Citing the stress and burdens on his family, he took a new job-as a prosecutor. NO EXCEPTIONS: A CAMPAIGN TO GUARANTEE A FAIR JUSTICE SYSTEM FOR ALL, VOLUME 4: UNEQUAL RESOURCES RESULT IN UNEQUAL JUSTICE (Sept.), available at

Tackling the Crisis

Ultimately, the lack of competent, vigorous legal representation for indigent defendants calls into question the legitimacy of criminal convictions and the integrity and efficiency of the criminal justice system as a whole. Judges, prosecutors, and defense lawyers alike understand that without sufficient resources and restructuring of indigent defense systems, the Sixth Amendment rights on which Gideon rests may be significantly undermined.

Trying to reform the quality of indigent defense systems through the courts has been difficult. The 1984 Supreme Court decision in Strickland v. Washington, 467 U.S. 1267, set the bar for competence of counsel so low that individual "ineffective assistance of counsel" claims mostly fail. In the state courts, attempts at system-wide reform in Arizona, Louisiana, Oklahoma, Minnesota, and New Jersey have met with limited or no success.

Change also has been slow in coming from state legislatures. Although public opinion research shows very strong public support for indigent defense and the principle of parity with prosecution resources, political consensus for change is often lacking. Some states recognize the need for reform but already-slashed budgets render funding elusive. Mississippi's state legislature passed a sweeping reform act to create a statewide indigent defense system in 1998 but eventually repealed it after funding never materialized. The Georgia legislature early in 2003 passed a similar law to create an integrated statewide system with full-time public defender offices in each of the state's forty-nine judicial circuits-although funding remains an enormous challenge.

Throughout the country, grassroots efforts are being made in many states to point out the injustices and inefficiencies in public defender systems. Small gains are being won. After years of deliberation, North Carolina's general assembly enacted the Indigent Defense Services Act of 2000, which led to statewide reform. After eight years of attempts, Texas passed the Fair Defense Act in 2001 to improve local procedures for appointing counsel. But much work remains to be done.

Where Do We Go from Here?
The Gideon Initiative

To tackle the systemwide need for reform, solutions must start in state capitols. The bipartisan Gideon initiative undertaken by the Constitution Project and NLADA hopes to facilitate high-level political consensus in support of quality indigent defense systems. The Gideon initiative will make the case that our country's system of justice demands that the rights established in Gideon be fully and effectively implemented, and will develop recommendations for how the states can do so.

Given the issue's ongoing crisis status and common misconceptions about criminal defense and the need for reform, this initiative could not have come at a more opportune time. It has been twenty-seven years since the last comprehensive review of indigent defense by a national commission. NLADA convened the National Study Commission on Defense Service in 1976, which issued a 560-page final report that examined the country's problems with indigent defense and recommended a comprehensive set of standards, Guidelines for Legal Defense Systems in the United States.

The Guidelines essentially elaborated upon and expanded the results of a 1973 commission, the National Advisory Commission on Criminal Justice Standards and Goals (NAC). Established to carry out the recommendation of the 1967 President's Commission on the Challenge of Crime in a Free Society, the NAC's mission was to develop the standards that would bring uniformity and professionalism to each of the components of the nation's criminal justice systems. The NAC's recommendations, drafted by prominent leaders from across the political spectrum including two governors, a big-city mayor, chief prosecutors, and others, have formed the foundation of each subsequent initiative dealing with standards and accreditation.

The bipartisan spirit evident in Gideon and in the work of the above commissions will continue in the Constitution Project/NLADA initiative, which will bring together experts and other interested citizens to create consensus recommendations for reforms. The committee will include individuals with a diversity of viewpoints and experiences, such as state and federal judges, prosecutors, law enforcement leaders, policymakers, defenders, corporate and civic leaders, and clients, such as exonerated individuals.

The bipartisan committee's work will be informed by nationwide research conducted by scholars with expertise in social sciences and criminal justice, and by previous research from academia and organizations such as the ABA, the NLADA, and the Spangenberg Group. The committee will identify the common obstacles to the realization of Gideon's promise; describe "best practices" indigent defense adaptable to different types of systems; prepare a checklist for reform that any jurisdiction may use; and create consensus recommendations for reform, including model federal and state legislation.

Many of the ingredients for reform are already present. Well-settled standards for quality, resources, and independence have long been available; but systemic changes will not be easy. The mission of the initiative by the Constitution Project and NLADA is to create a nationwide consensus for reform of a system that is, in many places, badly broken. We have too long ignored Justice Black's warning linking justice to money. It is time for the system to change once again.


Virginia E. Sloan is the president and founder of the Constitution Project. Cait Clarke is the director of the National Defender Leadership Institute, National Legal Aid and Defender Association (NLADA). Daniel Engelberg is a second-year law student at Georgetown University Law Center.