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January 01, 2013

United Nations Adopts Principles and Guidelines for Access to Legal Aid for Criminal Defendants

David M. Godfrey

The words of the Miranda warning are so enshrined in American culture that most of us could quote them in our sleep. These rights are not universal and the United Nations recently adopted a set of principles and guidelines for criminal justice systems to use in developing due process protections. Since the 1966 case of Miranda v. Arizona (384 U.S. 436 (1966)), the Miranda warning has become standard police procedure in the United States and has been permanently imprinted on the American psyche by television. The obligation of the state to provide an attorney to criminal defendants who cannot afford one, rooted in the 6th amendment to the United States Constitution, was clarified by the case of Gideon v. Wainwright (372 U.S. 335 (1963)). All 50 United States have criminal legal aid or public defender programs that provide legal assistance to persons accused of a serious criminal offense who are unable to afford an attorney. But around the world, the right of criminal defendants to receive legal assistance in criminal cases is not always a part of the criminal justice system. To address this, on December 20, 2012, the United Nations General Assembly adopted “United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.”

The principles and guidelines recommend basic protections for persons accused of serious crimes including the right to legal assistance, the right to remain silent, the right to legal counsel starting at the moment an individual is detained, access to the full spectrum of legal aid providers including attorneys, paralegals, civil society groups, and law school clinical programs, and the need to develop independent legal aid systems with sufficient resources to meet the need for legal assistance.

A basic principal of human behavior is that for people to respect, honor, and obey laws, they must believe that they will be treated fairly in the legal system. When individuals lack belief in the legal system, they have little reason to obey laws. A core need of a system of laws is to establishment basic due process protections including providing legal assistance to individuals in serious legal matters who are unable to afford an attorney.

While the United States system could easily serve as the model for these United Nations principles and guidelines, our system is not perfect. Our criminal defender programs are chronically underfunded and overworked. There is a misconception in popular culture that “every person accused of crime is entitled to an attorney,” but the reality is that only the poorest of the poor accused of serious crimes are able to talk to criminal public defenders. Persons slightly above the poverty level are often denied a court appointed attorney in a criminal matter and persons accused of many misdemeanors are not eligible for criminal legal aid in some jurisdictions. Persons in need of civil legal assistance face an even bleaker picture. Studies consistently show that civil legal aid providers are only able to meet the need of a tiny fraction of low income clients. While we have well-developed due process protections, the chronic underfunding of our legal aid systems, both criminal and civil, undermines confidence in the fairness of our legal system. ■

David M. Godfrey

About the Author: David Godfrey is a Senior Attorney at the ABA Commission on Law and Aging.