Eric Holder: A 'State of Crisis' for the Right to Counsel

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The broad abandonment of the right to counsel, says the attorney general, is "unworthy of a legal system that stands as an example for all the world."

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Citing both Robert F. Kennedy and Clarence Earl Gideon, United States Attorney General Eric Holder candidly acknowledged Friday in a speech at the Justice Department that the nation's judges, lawyers, and politicians have broadly failed to meet their constitutional obligation to provide America's poorest citizens with competent legal representation in criminal cases.

Framing the issue as a "moral calling" that has gone largely unanswered by the rich and powerful, Holder urged legal and political stakeholders in Washington and elsewhere to "stand up for" basic ideals of justice by "guaranteeing that every person in this country can access quality legal representation any time they come before the criminal justice system."

Holder's remarks came as he and other legal and political dignitaries marked the 50th anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, decided March 18, 1963, in which the justices unanimously declared that no citizen could get a fair trial in our criminal justice system without access to a competent lawyer. From the speech:

In the decades since this remarkable case -- and Gideon's retrial, at which he was found not guilty -- public defender systems have been established in some states and strengthened in others. Additional court actions have expanded the right to counsel in juvenile and certain misdemeanor cases. And our nation has made significant strides in fulfilling the promise of Gideon -- and ensuring quality representation for more of those who need it.

Yet, despite half a century of progress -- even today, in 2013, far too many Americans struggle to gain access to the legal assistance they need. And far too many children and adults routinely enter our juvenile and criminal justice systems with little understanding of the rights to which they're entitled, the charges against them, or the potential sentences they may face.

In short, America's indigent defense systems exist in a state of crisis. Like many of you, this is something I've seen firsthand. As a judge on the District of Columbia Superior Court -- and, later, as United States Attorney for the District of Columbia -- I frequently witnessed the devastating consequences of inadequate representation. I saw that wrongful convictions and unjust sentences carry a moral cost that's impossible to measure -- and undermine the strength, integrity, and public trust in our legal system. I also recognize that, in purely economic terms, they drain precious taxpayer resources -- and constitute an outrageous waste of court funds on new filings, retrials, and appeals just because the system failed to get it right the first time.

Today -- together -- it's time to declare, once again, that this is unacceptable -- and unworthy of a legal system that stands as an example for all the world. It's time to reclaim Gideon's petition -- and resolve to confront the obstacles facing indigent defense providers. Most of all, it's time to speak out -- with one voice -- to rally our peers and partners at every level of government and the private sector to this important cause.

Holder is right to say that it is going to take more than political rhetoric to guarantee Americans the constitutional rights they were promised in Gideon. It's going to take money directed from legislators, and a renewed commitment to equal justice from judges, and the consistent use of the bully pulpit of the presidency, to reverse the wholesale abandonment of the right to counsel we've seen over the past few decades.

This is a problem, unlike many other political or legal problems today, for which there are clear solutions. The only thing missing is the political courage and will to act on behalf of the nation's poorest people. It's nice to hear the attorney general speak out. But where is President Barack Obama, the constitutional law professor, urging equal justice for all? And where are the justices of the Supreme Court as one of their grandest precedents erodes like sand?

It is wholly unacceptable in America today that a poor man in Texas spent eight months in jail before he got an attorney, or that a poor woman in Mississippi spent 11 months in prison on a shoplifting charge because she wasn't given an attorney. It is unacceptable that young people are forced to plead guilty because their lawyers don't have time to adequately handle their cases or that murder defendants face capital punishment after trials in which their attorneys are grossly incompetent. What a shoddy legacy for a nation that prides itself on a rule of law.

I'm not optimistic that anything is going to change soon. Fifty years ago, another attorney general stood up on behalf of the nation's poor -- and in favor of a broad commitment to the right to counsel. "Equality of justice in our courts should never depend upon the defendant's wealth or lack of resources, but in all honesty we must admit that we have failed frequently to avoid such a result," said Robert F. Kennedy, speaking in Boston on November 1, 1963, three weeks before the Age of Camelot, and the Age of Gideon, ended.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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