Fifty years ago, in Gideon v. Wainwright, decided on March 18, 1963, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the law.” In later decisions, the Court ruled that a poor person facing any loss of liberty must have a lawyer “so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”
And yet, a half century later this right is violated every day in thousands of courts across the nation at every stage of the process, as noted in an op-ed by Stephen Bright and Sia Sanneh in the Los Angeles Times on the anniversary. This long-standing denial of justice to those whose life and liberty are at stake is well documented on this site and elsewhere. On the fiftieth anniversary of Gideon there has been virtually universal agreement that, while there is reason to appreciate what Gideon has accomplished in some jurisdictions that have good public defender or assigned counsel programs, public officials who have taken an oath to uphold the Constitution have flagrantly and persistently failed to implement the most fundamental constitutional requirement for fairness and equal justice in the criminal courts.
• Attorney General Eric Holder acknowledged that the right to counsel remains in a “state of crisis” because governments have failed to meet their constitutional responsibilities under Gideon. In a speech at the Department of Justice on March 15, Holder stated:
[E]ven 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. * * *
But the Attorney General had little to offer in response to the enormous crisis. He announced grants and awards to states and non-profit groups for of about $5 million for technical assistance, data collection, evaluation, and programs to improve representation. That is hardly enough to make much of a difference in any one state. Attorney General Holder created an Access to Justice Initiative in the Department in 2010. Two people served as senior counsel in its brief history and the position has been vacant for over a year. Twelve members of Congress recently wrote to Holder urging him to fill the position.
• Andrew Cohen describes How Americans Lost the Right to Counsel, 50 Years After ‘Gideon’ in a comprehensive article in The Atlantic. It tells the remarkable story of Clarence Earl Gideon, whose handwritten petition to the Court resulted in the decision (something “impossible to imagine it taking place in today’s world of law and justice”); the positive results of the decision, “millions of criminal suspects – the guilty, the innocent, and the somewhere-in-between – have been aided by earnest, capable lawyers”; and the even greater failure of legislatures to fund representation for poor people accused of crimes; the refusal of the Supreme Court to enforce the right to counsel; and the many injustices that have resulted from it.
• A forthcoming essay, Defiance and Resistance After Gideon v. Wainwright in the Yale Law Review, describes the day-to-day denial of counsel in country throughout the country:
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 poor people accused of Continue reading