Over 50 years after Supreme Court declares lawyers must be provided for poor people accused of crimes, the right is violated every day in criminal courts

In 1963, the Supreme Court declared in Gideon v. Wainwright 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, more than a half century later this right is violated every day in thousands of courts across the nation at every stage of the process, as described in an op-ed by Stephen Bright and Sia Sanneh in the Los Angeles Times on the anniversary of Gideon.  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 in 2013, there was virtually universal agreement that, while there are reasons 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.

•  Sia Sanneh and Stephen Bright describes the day-to-day denial of counsel in throughout the country in Defiance and Resistance After Gideon v. Wainwright in the Yale Law Review:

            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

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Justice Sotomayor dissents from failure to review Alabama law allowing judges to override jury verdicts of life imprisonment and impose death

Alabama law allowing elected judges to reject jury sentences of life imprisonment and impose the death penalty should be reviewed by the Supreme Court, Justice Sonya Sotomayor said in a dissent from the Court’s refusal to consider such a case.  An Alabama jury voted 8-4 to sentence Mario Woodward to life imprisonment with the possibility of parole after hearing evidence of his childhood and parenting at a sentencing hearing.  However, the trial judge, elected as a Democrat to his position, overrode the death sentence and imposed the death penalty.

Since Alabama adopted its current death penalty statute, its judges have imposed death sentences on 95 defendants sentenced to life without parole by juries.  In cases in which juries voted to impose the death penalty, judges overrode and imposed life imprisonment only nine times.  Only two other states, Florida and Delaware, allow overrides, but Alabama is the only state in which judges still override jury verdicts.   Twenty-six of the 27 life-to-death overrides in the nation since 2000 were by Alabama judges.  (The other, which occurred in Delaware, was later reduced to a sentence of life imprisonment.)

Justice Sotomayor, joined in part by Justice Breyer, identified the reason for overrides in Alabama.  “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures,” she said.  She observed that a “national consensus has Continue reading

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SC Supreme Court refuses to address racial bias of juror and prosecutor in capital case

The South Carolina Supreme Court refused to review a juror’s reference to a man sentenced to death as a “dumb nigger” and racial tactics employed by the prosecutor before an all-white jury to get the death penalty.   Johnny Bennett, an African American, was sentenced to death by an all-white jury in 2000 after an earlier death sentence, imposed by a mixed-race jury in 1995, was reversed on appeal.

A juror stated after the second trial that Bennett had committed the crime “because he was just a dumb nigger.” In a hearing before the trial court, the juror admitted using the racial slur as well as using it with “dumb” on previous occasions.  The trial judge, in an order Continue reading

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Implicit racial bias influences imposition of the death penalty

Racial stereotypes of jurors who may associate white defendants as having more worth than black defendants contributes to the racial disparities in the infliction of the death penalty, according to a recent study.  The study further found that death-qualified jurors held stronger racial biases than potential jurors who would be excluded from serving in death penalty cases because of their inability to consider a sentence of death.  The study, Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States,” was based on testing of 445 jury-eligible individuals by researchers Justin Levinson, Robert Smith, and Danielle Young, and will be published in the New York University Law Review.

Other factors that contribute to racial disparities include discretionary decisions made by law enforcement with regard to stops, arrests investigation of cases, and by prosecutors with regard to charging, seeking the death penalty, resolving cases with plea bargains and striking potential jurors on the basis of race.  These and other racial factors are discussed elsewhere on this site.

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Hiring and firing of nightclub employees among questions raised about public defender elected with prosecution and police support

Matthew Shirk earned considerable notoriety by winning an election in 2008 to become the public defender in Jacksonville, Florida with the support of police and prosecutors and a promise that, if elected, he would not allow public defenders to accuse police officers of lying.  Upon winning, he fired ten senior lawyers in the office, significantly diminishing its ability provide competent representation to poor people accused of crimes.  Now his hiring practices have come under scrutiny.

Shirk hired two women who worked at he Whisky River nightclub and restaurant as investigators in May, 2013, after finding one of the women on social media and considering her attractive, according A. L. Kelly, who resigned as director of investigations because of Shirk’s treatment of the women.   Shirk fired them less than a month later, Continue reading

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