Gideon: Right to Counsel?: Landmark Decision Falls Short of Promise
By Bob Kemper

Prisoner No. 003826 was a familiar sight to prosecutors in Florida even before they laid eyes on him. He quit school after the eighth grade, ran away from home at 14, and was arrested for the first time at 16. He served prison time for stealing in three other states. He had often been homeless and only occasionally employed. He had been married four times and fathered three children, all taken away from him by state welfare officials. By the time he was arrested in Panama City, Florida, in the summer of 1961, he was 51, too poor to hire a lawyer, and quickly sentenced to another five years in prison.

Prisoner No. 003826 was only the latest in a long line of poor Americans corralled through the criminal justice system by then, forced to defend himself in court against trained prosecutors and long odds. But there was one clear distinction about him: Prisoner No. 003826, a man named Clarence Earl Gideon, was supposed to be the last of his kind.

From his Florida jail cell, Gideon sent a penciled petition to the U.S. Supreme Court arguing that his Sixth Amendment rights had been violated because the state court refused to give him a lawyer even after he told the judge he could not afford one. The Court agreed, and in March 1963, issued a unanimous decision in Gideon v. Wainwright ordering the states to provide a lawyer for anyone facing a felony charge who could not afford to hire his or her own attorney. Writing for the Court, Justice Hugo Black called it an “obvious truth” that “lawyers in criminal courts are necessities, not luxuries.” He added, “The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

Gideon’s Unfulfilled Promise
More than 45 years after Gideon, the right to counsel has been expanded to juveniles (In re Gault, 1967) and for those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 1972). All 50 states and the District of Columbia have since then put in place some form of criminal defense system to meet the Court’s mandate. But as study after study has shown over the past five years, the ideals of the Gideon decision and its progeny remain unmet, and thousands of people across the country go to jail every year without ever being competently defended or even talking to a lawyer.

“It never has lived up to its promise,” Bruce Jacob, who as an assistant attorney general in Florida argued for the state in the Gideon case, says of the 1963 decision. “At the time it was decided, people thought, well, now the problem is solved. But that has not been true. Nearly 50 years later, it has not been solved at all…. The whole system is pretty awful right now. The Gideon case, the ideals that the Court announced have just not come close to being met.”

The right to counsel is explicitly guaranteed in the Sixth Amendment, but the Supreme Court left it to individual states to determine how and when counsel should be provided and to whom. That has led to a patchwork of systems across the country in which the availability and quality of counsel varies significantly from state to state and, in some cases, between counties in a single state. Geography plays an outsized role in determining how 80 percent or more of Americans charged with a crime may have a lawyer and which ones may not, according to several groups, including the American Bar Association (ABA), that have studied indigent defense nationwide.

The disparities are readily apparent in the Washington metropolitan area where a poor person charged with a crime has the greatest chance of being given free legal representation and the resources needed to defend him- or herself. The Public Defender Service for the District of Columbia, the only local defender office funded by Congress, is considered the gold standard for the rest of the country. It is one of the only offices in the United States that consistently meets nationally recognized standards for indigent defense, including safeguards to protect its lawyers from judicial or political pressures, a commitment to providing investigative services, and a one-of-a-kind caseload management system that ensures lawyers never have so many clients that they cannot ethically represent each of them. Cases that cannot be handled by the Public Defender Service are assigned to a pool of experienced defense lawyers under the Criminal Justice Act to ensure no one falls through the cracks.

That same defendant who got a lawyer in Washington is also likely to get one in Maryland because the state takes into consideration the entire cost of the case, including the expense of hiring investigators or outside experts when determining eligibility. That makes it more likely that a defendant would qualify financially for free legal counsel. The Maryland Office of the Public Defender, however, has faced budget cuts its congressionally funded D.C. counterpart has avoided. In recent months the state, like so many others, has tried to cover a massive, recession-induced budget deficit.

Just across the Potomac River in Virginia, that same defendant who was provided a lawyer in Washington and Maryland could be denied an attorney even if he or she cannot afford one. That’s because the Old Dominion looks at whether a spouse or other family member has sufficient funds to hire a lawyer, regardless of whether that relative is able or willing to pay those costs.

How Poor Are You?
But Virginia is far from being the worst when it comes to meeting its constitutional mandate to provide counsel, according to the 2008 nationwide study Eligible for Justice: Guidelines for Appointing Defense Counsel conducted by the Brennan Center for Justice at New York University School of Law. In Arizona, a defendant could be denied a lawyer if that individual has enough equity in his or her home to cover the cost, presumably by borrowing against that equity or selling the house. Collin County, Texas, will not provide a lawyer to anyone with assets exceeding $2,500, even though liquidating those assets might still not be enough to cover the entire expense of a trial. In Florida, the value of a defendant’s home is not used to determine eligibility, but one can still be denied counsel if he or she has “intangible or tangible personal property” worth more than $2,500 or a second car worth more than $5,000. Florida also denies free legal representation to any defendant who can post bail of $5,000 or more, forcing many to choose between jail time and representation.

In New Hampshire, defendants charged with a misdemeanor cannot get a court-appointed lawyer if they own a business or home worth more than $10,000, according to the study. For more expensive felony cases, such assets cannot be worth more than $20,000. Ohio officials count any money a defendant has for car repairs or minimum monthly credit card bills as being available to pay a lawyer. The money the defendant spends on child care also can be considered available for legal fees if “any adult member of the applicant’s household is unemployed and able to provide supervision,” regardless of whether that person is willing to provide that care, the Brennan Center found. In New Jersey, some defendants must first get estimates from three private lawyers and show they cannot afford any of them before they are given counsel, delaying their access to a lawyer.

“I think after Gideon, people would never have guessed that it is where it is now,” says John Payton, a former president of the D.C. Bar and current president of the NAACP Legal Defense Fund. “All the TV shows give you the impression that not only does everyone get a lawyer when they need one, but that they show up at the police station right on time. They walk in right in the middle of the interrogation, and they’re all pretty good. That ought to be what we aspire to be as a country. We ought to want that to be the case. Everybody has a right to counsel.”

David Carroll, director of research and evaluation at the National Legal Aid and Defender Association (NLADA) which investigated defense problems in Michigan in 2008, offers a similar assessment. “It’s clear that the right to counsel is in crisis in our country. There are some states that are better than others, but on the whole, right to counsel is in trouble,” he says. “This is a real American value that is being eroded, and I think most people do not get it.”

Overworked Public Defenders
The fundamental problem, almost everyone involved in the debate agrees, is two-fold: A lack of money and a decades-long political crusade to get tough on crime by expanding the number of punishable offenses and extending the jail time of those convicted.

In a report prepared by The Spangenberg Group for the ABA in 2006, states and counties spent $3.5 billion on indigent defense in 2005 alone. Yet virtually every study done since the Gideon decision shows that even the most dedicated public defenders lack the resources they need to give every client the zealous defense they are ethically required to provide.

Lacking adequate funding, public defenders everywhere are forced to juggle hundreds of felony and thousands of misdemeanor cases each year. The National Advisory Commission on Criminal Justice Standards and Goals recommends that attorneys handle no more than 150 felony cases a year, but, in practice, defenders are often forced to juggle cases several times that number, according to a five-year study released this April by The Constitution Project, a Washington, D.C.-based think tank. The study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, cited, as an example, Miami–Dade County where the average public defender caseload jumped from 367 felonies in 2006 to nearly 500 today, yet its public defender’s budget has been slashed by 12.6 percent in the past two years.

The situation is much worse when it comes to misdemeanor cases. The standards commission recommended a limit of 400 misdemeanor cases per attorney per year, allowing about six hours for each case. But in many states, defenders are handling 1,500 to 2,000 cases each year—far too many to provide adequate defense for any of them, according to the 18-month study Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, which was released in April by the National Association of Criminal Defense Lawyers (NACDL). In Atlanta, Chicago, and Miami, each lawyer must clear an average of 10 cases a day, allowing only about 45 minutes for each, the study showed. In New Orleans, part-time defenders each carry close to 19,000 misdemeanor cases a year, limiting them to seven minutes for each.

‘McJustice’ for Misdemeanors
The problems of dwindling resources and soaring caseloads, coupled with the insistence of political leaders that public defenders share in the budget sacrifices, have prompted public defenders, including Miami’s, to sue for permission to stop handling certain cases. Such cases are now pending in seven states.

Defendants charged with misdemeanors are the most likely to go to jail without ever talking to a lawyer, several studies found. Those charged with misdemeanors often find their first court appearance is likely to be their last, primarily because most are actively encouraged to plead guilty.

Defendants charged with misdemeanors are often never informed of their rights, told they could face longer sentences unless they waive their right, or coerced into seeking plea deals from prosecutors. Colorado requires defendants charged with misdemeanors to negotiate a plea with prosecutors before they can receive a public defender, according to the NACDL report. The situation has grown so bad in Michigan that local lawyers refer to the processing of misdemeanors as “McJustice.”

The lack of funding is forcing many poor defendants who do not want to plead guilty to spend weeks or months in jail waiting for a lawyer. Many eventually plead guilty just to get out of jail, studies found. Walter Mann Sr., an elderly man from Dallas, spent more than a year in a Texas jail without ever seeing a lawyer because his court day was repeatedly postponed. He was released in 2005 only after an inmate told his attorney about Mann.

In some cases, the penalties defendants pay for an inadequately funded system is much higher. Alan Crotzer, who now works as an intervention specialist at the Florida Department of Juvenile Justice, was convicted in 1981 on rape, kidnapping, and robbery charges and sentenced to 130 years in prison even though he had told his lawyer he had an alibi for the night of the crime, he didn’t match a victim’s description of her assailant, and he didn’t know either of the two other men charged with the crimes. DNA evidence eventually proved Crotzer innocent, and he was released in 2006 after serving 24 years in jail.

“I spent more than half my life in prison. My life was turned upside down. And I’m not the only one,” Crotzer testified before the House Committee on the Judiciary’s Subcommittee on Crime, Terrorism and Homeland Security on June 4. “This system is broke, it failed me from the very beginning. Why? I’m indigent.”

Gideon’s Legacy
Crotzer’s story, though told decades later, is eerily similar to Gideon’s experience.

Gideon was arrested in Panama City, Florida, on charges that he had broken into the Bay Harbor Pool Room on June 3, 1961, smashed a jukebox and cigarette machine, took about $65 in change, and then stole several bottles of beer and soda. In court, Gideon told Judge Robert McCrary Jr. that he could not afford a lawyer and asked the court to appoint one for him. But McCrary couldn’t—Florida at the time provided a public defender only in capital cases. Gideon didn’t qualify. He had to defend himself.

The prosecutor produced an eyewitness, Henry Cook, who told police he’d seen Gideon outside the pool hall around 5:30 a.m. the day of the break-in and claimed Gideon had a pocketful of change and pint bottle of wine. There was testimony, too, from a taxi driver who said he picked up Gideon outside of the pool hall and drove him to a bar. Gideon, the taxi driver said, told him, “Don’t tell anybody you picked me up.” The jury sentenced Gideon to five years.

Following the Supreme Court’s ruling, Gideon was tried a second time, in August 1963, this time with W. Fred Turner as his attorney. Turner quickly picked apart Cook’s testimony and suggested to the jury that Cook had been there as a lookout for the teenagers who had actually robbed the pool hall. Turner also got the taxi driver to admit that every time he had given Gideon a ride, Gideon had asked him not to tell anyone. Gideon didn’t want his wife to know when he was going to a bar, the driver said. It took the jury an hour to acquit Gideon, two years after he was wrongly convicted.

Footing the Bill
The Supreme Court, in deciding Gideon and subsequent cases that expanded the right to counsel, ordered states under the Fourteenth Amendment to provide legal representation to those who could not afford it on their own. The Court, of course, could not provide funding or direct states to look for funding sources, and so states were left to find the money wherever they could.

Some states, such as Florida, quickly established statewide public defender systems. Others, however, passed on some or all of the financial responsibility to their county governments, which are typically far more limited in how they can raise money. Most counties rely on local property taxes to fund their budgets, and a number of states limit how much those taxes can be raised each year. The result was that the nation’s poorest counties, which often had a larger percentage of indigent defendants, were the ones least able to provide counsel. That situation led the U.S. Department of Justice to declare in 1999 that America’s indigent defense system was “in a chronic state of crisis.”

“There’s been a chronic problem with Gideon in that the Supreme Court never made clear who was going to pay,” says David Udell, director of the Justice Program at the Brennan Center for Justice. “And now is a particularly bleak time [financially] for states and counties.”

Counties, of course, tried to provide indigent defense as cheaply as possible by using flat fee contracts under which a local lawyer is provided a set amount of money to defend all of those in need of counsel. Though cheaper, flat fee contracts create inherent conflicts of interest for lawyers who must decide how much to spend on each defendant, including whether to hire investigators or outside experts, and how much to retain to cover overhead and profits. Several national groups have called for the abolition of flat fee contracts.

As evidence and lawsuits mounted, showing that poor defendants were being denied competent counsel or given no counsel at all because counties could not afford it, the states began to institute reforms and increase their own funding for public defenders.

State governments that were paying about 38 percent of the total cost of providing counsel to the poor in 1986 increased their share of the expenses to just more than 50 percent by 2005, The Constitution Project reported in Justice Denied.

State spending in Arkansas, for example, jumped from zero to 91 percent between 1986 and 2005. In Minnesota, it rose from 11 percent to 93 percent. Iowa, which once provided less than 3 percent of the cost from state funds, now pays the entire cost. Eight of the 10 states that provided no money at all for indigent defense in 1986 now provide some or all of the funding, the study showed. Only Pennsylvania and Utah still leave the cost entirely to their county governments.

Progress among the states has been uneven. Georgia overhauled its public defender system in 2003 and doubled the state’s share of the funding between 2002 and 2005 from $9.4 million (17 percent) to $37.2 million (40 percent), according to The Spangenberg Group’s nationwide report on indigent defense services for the ABA. Still, costs for counties rose from $44.6 million to $57 million during that time. Then, when the recession hit and the state had to slash spending, the newly minted statewide public defender system was forced to lay off employees and stop paying private attorneys it needed to help public defenders avoid conflicts of interest in cases involving multiple defendants.

Texas doubled state spending on indigent defense since 2002 to nearly $16 million a year. But its counties are still paying 90 percent of the cost, $150.5 million in 2006 alone.

Punishment Binge Among States
Compounding problems created by a lack of funding is the rapid growth in the number of crimes and the longer sentences being mandated for existing crimes, a variety of studies showed.

From the federal government’s “war on drugs” to local ordinances such as Nevada’s ban on feeding the homeless in public parks or New York’s law against sleeping in cardboard boxes or on subway trains, the expanding net of the criminal justice system was snaring more Americans than ever before. In its recent study Minor Crimes, Massive Waste, the NACDL reports that a chief impediment to an effective criminal justice system is the vast number of misdemeanor offenses clogging court dockets and overcrowding the nation’s prisons, including turnstile jumping, fish and game violations, dog leash violations, and minor in possession of alcohol.

There were 2.3 million people locked up in American prisons and jails in 2008, according to the Justice Department, and millions more on parole or probation. Estimates of the number of people caught in the criminal justice system are as high as 1 in every 100 adult Americans, many of them minorities.

“When we don’t like certain conduct, all too often our response is to make it a crime,” says Rep. Robert C. Scott (D–Va.), who chairs the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security and who has launched the first congressional hearings into the indigent defense system’s current problems. “In many such instances, a more effective and less costly response might be to consider education, prevention, or treatment.”

Jacob, who argued the state’s case in Gideon and who is now dean emeritus and a law professor at Stetson University College of Law in Florida, said the tough-on-crime spree has made for good politics but bad policy.

“Twenty or 30 years ago, politicians would campaign on ‘lock ’em up, just throw away the key.’ Sentences got much longer. Now, drug crimes, for example, have become very, very serious offenses, and we’re sending people off for 20 years,” says Jacob, who has spent most of his post-Gideon career on the defense side. “Politicians found that they could get a lot of mileage out of just screaming for longer sentences and getting tough on crime. They scared people. People were worried about crime back in those days, I won’t say they weren’t worried about crime, but it wasn’t quite as hostile an environment as it is today.”

A number of groups seeking to strengthen the indigent defense system are backing legislation introduced this year by Sen. Jim Webb (D–Va.) that could reverse decades of increased criminalization. Webb’s proposed National Criminal Justice Commission Act of 2009 calls for an 18-month, comprehensive evaluation of the nation’s criminal justice system by a special commission, including the impact zero-tolerance drug laws have on the prison system, alternatives to incarceration for the mentally ill, and policies that “too often incarcerate people who do not belong in prison and distract [law enforcement] from locking up more serious, violent offenders who are a threat to our communities.”

Erik Luna, a law professor at Washington and Lee University and an adjunct scholar at the libertarian Cato Institute in Washington, D.C., says the states themselves have created many of the financial problems they face today with indigent defendants.

“It’s an unfortunate reality that indigent defendants are having to pay the price in this situation for the one-way ratchet of criminal justice in the United States and in the individual states, the punishment binge, and criminalization binge that all jurisdictions have been on for several decades,” Luna adds. “Lawmakers are more than happy to continually add new crimes and harsher punishments and extend criminal liability through new legislation, but are unwilling to pay to meet their constitutional obligations when indigent defendants are brought into the criminal justice system.”

Favored in Funds
Advocates for a stronger indigent defense system are also turning to Congress for financial help.

Several groups that have examined the nationwide system, including the ABA, argue that while indigent defense is a state responsibility, it is also a constitutionally and federally mandated expense that the federal government should help shoulder.

Congress paid about $36 million this year to the District’s Public Defender Service, but the only other local public defender offices to get federal money were five Indian reservations in South Dakota, which received a total of $3.1 million courtesy of earmarks Sen. John Thune (R¬–S.D.) inserted into the 2009 budget bill of the Justice Department. The federal government also will provide nearly $400 million this year to the Legal Services Corporation, which helps provide counsel to low-income people involved in civil cases, even though there is no constitutionally mandated right to counsel in those cases as there is in criminal cases.

Groups that have investigated problems with indigent defense complain that while the federal government provides next to nothing to defend indigents charged with crimes, it has sent tens of billions of tax dollars over the last two decades to police and sheriffs’ departments, and to local and state prosecutors’ offices so they could enforce the new crime laws Congress and the states have enacted.

Moreover, the federal government provides a variety of in-kind services for prosecutors, including investigators, experts, and scientists who help build cases against the accused. In 2008 President George W. Bush signed the legislation that would provide $4.75 million a year to the Ernest F. Hollings National Advocacy Center, a specialized school in South Carolina that trains prosecutors. Although that amount was less than the $6.5 million a year lawmakers wanted to provide through 2012 for the school, Congress provided no funding to train public defenders in the same way. Several studies estimate that prosecutors are likely to get twice as much money as public defenders from states and local governments as well.

That bias toward the prosecution has created a significant imbalance in the criminal justice system, which depends on an equilibrium among judges, the prosecutors, and defense counsel, advocates for indigent defenders said.

“The criminal justice system has been referred to as an ecosystem. All of the pieces are inextricably intertwined,” says Jo-Ann Wallace, a former director of the District’s Public Defender Service and the current president and chief executive officer of NLADA. “If the federal government gives more money to put more police officers on the streets, then that means they are more likely to arrest more people so there would likely be more prosecutions and, of course, there would be more of a need for defense counsel. So we think that it’s very appropriate for the federal government to provide money to the states to support indigent defense because, first, it is a federally mandated obligation, and, two, what in fact they’ve done by giving money to law enforcement without corresponding support to public defense is that they’re actually exacerbating the situation. They’re creating a real imbalance in the system which, ultimately, doesn’t support the fair administration of justice.”

Federal Intervention
County executives, now facing drastic budget cuts because of the economic downturn and unable to properly fund higher local priorities like road and bridge construction and Medicaid, are too busy with those other issues to lobby for federal assistance for their public defenders although they recognize more money is needed, says Michael Griffin, executive director of County Executives of America.

“Most county executives would welcome federal support,” Griffin says. “Whether or not they want to increase their own budgets [for indigent defense] in these trying times is a totally different story.”

Rep. Scott, who chairs the House subcommittee overseeing the criminal justice system, is sympathetic to the plight of indigent defendants. As a state senator in Virginia in the 1980s, Scott pushed for legislation to reform the state’s public defense of prisoners facing the death penalty and to provide additional state funding needed to implement those reforms. The result is that those who are innocent are provided a greater safeguard while fewer death penalty cases are being overturned on appeal, he says.

“Everyone agrees that indigent defense, as a whole, needs more funding, but no one wants to pay,” Scott says. “We continue to fund local and state governments for increased law enforcement and prosecution, but we refuse to give money to the defense.”

Among the options Scott is considering are federal funding for an independent National Center for Defense Services that would aid state and local defenders and the possibility of requiring parity in congressional spending on prosecution and the defense. He also must weigh the political possibilities of finding new money for the defense in a federal budget already bloated by red ink, or redirecting some of the money now provided to prosecutors to the defense.

But there is resistance on Capitol Hill to the possibility of further expanding the federal government’s commitments at a time when it is already funding two wars and a nearly $800 billion economic stimulus package. Rep. Louie Gohmert of Texas, the top Republican on Scott’s subcommittee, says the federal government is overextended and cannot afford to relieve states of what is rightfully their responsibility under the Gideon decision.

“Prisons have the responsibility to feed all of their inmates. It’s not a federal duty to come in and pay for their food if prisons don’t feed inmates,” Gohmert says. “State and local governments have an obligation to make sure the system works.”

Luna, of Washington and Lee University, says congressional intervention could prevent states from making badly needed reforms, including a reduction in the number of crimes requiring jail time, at a time when the economy provides them an incentive to seek savings in the existing system. Luna was referring to the possible intervention as a “bailout” for states, although he adds, “I wouldn’t lose sleep if Congress decides to fund this,” given that there are more serious problems with the system that need to be addressed, including the over- criminalization of minor offenses.

“The states are the entities that are making these choices and have it within their power to reduce the scope of the criminal justice system, which is vastly bloated, and to reduce the sentences, many of which are utterly draconian, to find sentencing alternatives that do not require such a vast expenditure of resources. It’s within their power and for the federal government to sink resources into it is simply feeding the beast,” Luna says. “I wonder whether or not a federal bailout will allow [state and local] lawmakers to continue on their one-way ratchet, which is to punish, punish, punish, criminalize, criminalize, criminalize.”

In one of the more promising signs for public defenders, U.S. Attorney General Eric H. Holder Jr. outlined in June a five-point plan to expand federal involvement in strengthening the nation’s indigent defense system. Holder told the American Council of Chief Defenders that he would begin meeting personally with the defense bar, give defenders a greater say in federal criminal justice policy, and hold a national conference on indigent defense that could help counties and states improve their public defender systems.

“Another 45 years have passed since Gideon, and the promise of Gideon remains not fully fulfilled,” Holder said. “It’s our responsibility to continue to work toward realizing the principle that Justice Black described and worked for. Justice shall not be done until we do.”

Bob Kemper is a freelance writer based in Washington, D.C.