How Americans Lost the Right to Counsel, 50 Years After 'Gideon'

'There may be no adversary system'

In America today, the legacy of Gideon may be visible in virtually every courtroom in every state on every day of the week. If you count federal, state, and county public counsel, there are approximately 15,000 court-appointed defenders representing millions of criminal suspects, defendants, and inmates all over the country. These lawyers are supported by thousands more administrative assistants. Tax dollars pay for virtually all of it. But despite the time and effort offered up by these advocates, and despite the constitutional mandate that no person should be deprived of an effective advocate, it is not enough.

There are simply too many criminal cases, too few lawyers to handle them, too little in public defense budgets, and far too little political power for reformers seeking to make good on Gideon's promise. The leading scholar in this area is probably Stephen B. Bright, a visiting lecturer at Yale Law School who also serves as president of the Southern Center for Human Rights. In a forthcoming Yale Law Journal piece titled "Fifty Years of Defiance and Resistance to Gideon v. Wainwright," Bright joined another criminal justice expert, Sia M. Sanneh, a seasoned lawyer with the Equal Justice Initiative, to cogently describe the scope of the problem:

Every day in thousands of courtrooms across the nation, from top tier trial courts that handle felony cases to municipal courts that serve as cash cows for their communities, the right to counsel is violated. Judges conduct hearings in which people accused of crimes and poor children charged with acts of delinquency appear without lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before and will never see again. Innocent people plead guilty to get out of jail ...

Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads, who practice triage as they attempt to represent more people than is humanly--and ethically--possible without the resources to investigate their clients' cases, retain expert witnesses, or pay other necessary expenses. As a result, they are unable to assess cases and give their clients informed, professional advice during plea negotiations that resolve almost all cases in 'system of pleas, not trials.'

In the rare cases that go to trial, they often cannot seriously contest the prosecution's cases, raise and preserve legal issues for appeal, or provide information about their clients that is essential for individualized sentencing. For the poor person accused of a crime, there may be no adversary system. Prosecutors may determine outcomes in cases with little or no input from defense counsel.

No one wants to pay for more public defenders. Or, better put, few people in political power care enough about the gross injustices being done to poor people to spend more money trying to ensure they receive adequate representation. "Inadequate funding is the primary source of the systemic failure in indigent defense programs nationwide," concluded Harvard Law School student David A. Simon in a thoughtful law review piece published a few years ago. "Of the more than $146.5 billion spent annually on criminal justice, over half is allocated to support the police officers and prosecutors who investigate and prosecute cases, while only about two to three percent goes toward indigent defense."

Bright and Sanneh don't just blame lawmakers. "Many judges tolerate or welcome inadequate representation because it allows them to process many cases in a short time," they write. And the problem is made worse, they contend, because the "Supreme Court has refused to require competent representation, instead adopting a standard of 'effective counsel' that hides and perpetuates deficient representation." Not only that, Simon adds, but the justices have "neglected to specify which level of government -- federal, state or local -- must serve as the guarantor" of the right to counsel nor the "method by which states should administer their public defender programs." No one is responsible, in other words, because everyone is in charge.

Earlier this month, echoing Justice Stevens, Bright told me via email that this problem isn't likely to be solved by a purely top-down approach from the Supreme Court or Congress. "There is a belief," Bright says, "that different approaches may be appropriate for different places." For example, he notes that Maine provides representation completely through assigning private counsel. So does San Mateo County, California, which provides representation through its bar association. But Colorado and other states have state-wide public defender programs that work well.

On the other hand, Bright notes, other states "like Alabama, California, Michigan, New York, and Texas have not put anyone in charge on a state-wide basis but have left selection and administration of a system to their counties." The result is unequal justice layered upon unequal justice, with the quality and level of legal representation depending entirely on the county where it is sought. And this fractional approach is a direct result of the concept of federalism -- of the Supreme Court's concerns about dictating too much to states and counties about how they should comply with the right to counsel.

The myth of Gideon

Over the years, the Gideon case has become more than just a story about the recognition of a right. It has come to represent an idea -- an ideal, really -- representing much of the best we like to believe about our Supreme Court, our justices, and our rule of law. Gideon's story is really a fable. A mighty court hears the cry of the lowliest man. It reaches down to help. It appoints for him one of the most learned counselors in all the land. The state is blunted. And eventually the man, the poor, dignified man, is redeemed. No wonder Henry Fonda wanted to play Gideon in the 1980 television movie.

His prior trial experience, Lewis came to understand, had given Gideon "a firm idea that people were entitled to lawyers before they were convicted. That was engraved in him. It was an obsession."

Anthony Lewis, writing at the time for the New York Times -- and, on this story, at the New Yorker -- is largely responsible for this myth-making. His book Gideon's Trumpet, published in 1964, remains one of the best nonfiction works written about the Supreme Court and the American legal system. It was Lewis, click-clacking away on his typewriter as a correspondent covering the Court, at the right place at the right time, who first recognized the story the case might one day become. It was Lewis who gained access to all of the key players and whose coverage of the Court in 1963 earned him his second Pulitzer Prize.

"And all of it was sort of romantic," Anthony Lewis would say four decades later, speaking about the case of his lifetime. "Right from the beginning it struck me" that "something important might well happen," he told an interviewer in 1993, "and it was started by this prisoner's handwritten letter on stationary that said 'Approved Warden' or something like that." From the state prison in Raiford, Florida, Clarence Gideon had written the justices directly, asking them to overturn his larceny conviction and five-year prison sentence because he had not been given a lawyer at trial.

"It was astonishingly easy to see" Gideon himself, Lewis said of a visit to the prison before the inmate's case was decided by the justices. "The warden and the others were delighted to have me meet him. He was sort of a favorite. He was a harmless old chap." Gideon was also, to use more modern parlance, a habitual criminal. Thirty years earlier, in 1932, he and some confederates had broken into an armory and stolen guns to rob a bank. Their car got stuck in the mud -- and Gideon served five years in federal prison. He had also been prosecuted under state law in Missouri. He was a fellow, in other words, who had seen the insides of a lot of courtrooms and who knew the value of a lawyer.

Gideon wrote his petition to the Supreme Court for a writ of certiori on five pages of prison stationery. (U.S. National Archives/Flickr)

This trial experience, Lewis came to understand, had given Gideon "a firm idea that people were entitled to lawyers before they were convicted. That was engraved in him. It was an obsession." Lots of prisoners have obsessions about the law. Courthouses are flooded with prisoner complaints and lawsuits chronicling many of those obsessions. But within two years of his conviction, and just about one year after reaching out to the Supreme Court, Gideon's obsession would dictate the law of the land. And the man serving a five-year prison sentence for breaking and entering a poolroom would become one of the most famous Supreme Court litigants of all time.

'Not a system based on a rule of law'

None of us can plead ignorance or even say that we are surprised by the injustice occurring in our name all across the country. For decades, Professor Bright and other lawyers and human rights advocates have been compiling lists of Americans whose rights to counsel has been effectively denied despite the Supreme Court's pronouncement in Gideon. The American Bar Association, which has been sounding the alarm for decades now, concluded 10 years ago, on the 40th anniversary of the Gideon ruling, following an intense series of hearings, that "thousands of persons are processed through America's courts each year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some case the inclination to provide effective representation." The ABA Report continued:

All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.

That was 10 years ago. If anything, the problem in the intervening decade has gotten worse because of state budget cuts to public defender programs. So there is the story of the Texas man, charged with murder, who sat in jail for eight months before he was given an attorney. There is the story of the New York woman whose husband died because she wasn't able to take him to dialysis -- because she couldn't make bail, because she wasn't promptly given a court-appointed lawyer. And there is the story of a Mississippi woman who spent 11 months in jail, charged only with shoplifting, before a judge appointed an attorney to represent her.

Fifty years after Gideon, things are bad most everywhere in America. But they are particularly bad in the South. State officials in Texas have routinely refused to adequately fund county programs for the defense of the poor. In Georgia, juvenile suspects are herded through court like cattle. In one case to which Bright pointed, a 17-year-old accused of stealing a go-cart was asked by his judge if he was satisfied with his public defender. Confused, the teen said, "I don't have one." At the last minute, an overworked public defender told the judge that he represented the young man. The judge then sentenced the teenager to five years probation, and ordered him to pay a $300 fine, $500 in restitution, and a $50 public defender fee. Can this be consistent with Gideon? Surely not.

These stories advocates have compiled -- and thousands more unfolding each year -- do not arise in a vacuum. They are instead the purposeful result of state laws and policies that undercut the premise of Gideon at every turn. Some states require criminal defendants to consult with prosecutors about a plea deal before an "application for appointment of counsel" may be pursued. Other states have "capped" the amount court-appointed lawyers may charge in serious cases. Some states do not give capital defendants any counsel at all for their post-conviction review. Only a few provide counsel for post-conviction review in non-capital cases. Others simply recycle public defenders whose competency is in doubt.

This winter, a poignant documentary titled Gideon's Army won rave reviews at the Sundance Film Festival. The film, which will air this summer on HBO, was directed and produced by Dawn Porter, an attorney who sought to chronicle the despair of indigent cases. "The average caseload for a public defender in Miami Dade County, Florida, at any one time," the film's promotional material reveals, "is 500 felonies and 225 misdemeanors." The film shows us dedicated young attorneys, in Georgia and elsewhere, drowning in a sea of work, struggling to do the right thing on behalf of their clients. As Bright puts it:

The cost of this one-sided system is enormous. Innocent people are convicted and sent to prison while the perpetrators of crime remain at large. Important issues, such as the system's pervasive racism -- from stops by law enforcement officers to disparate sentencing -- are ignored. People are sentenced without consideration of their individual characteristics, allowing race, politics, and other improper factors to influence sentences.

Over 2.2 million people -- a grossly disproportionate number of them African Americans and Latinos -- are in prisons and jails at a cost of $75 billion a year. An additional five million people are on probation, parole, or supervised release. Over 70,000 children are held in juvenile facilities.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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