Fifty years after Gideon, the broken promise (opinion from John A. Lentine) Print By Special to AL al on July 02, 2013 at 1:00 PM Email Florida mugshots of Clarence Earl Gideon By John A. Lentine Fifty years ago, the United States Supreme Court handed down the landmark decision of Gideon v. Wainwright in which the court held that the 6th and 14th Amendments to our Constitution requires that the states provide indigent persons accused of a crime counsel to represent them regardless of their inability to pay for legal representation. The court acknowledged the lawyers who represent an accused person in a criminal case are necessities, not luxuries. At its essence, the decision was a promise of fairness, a recognition that our criminal justice system cannot function without every accused person, regardless of means, having the right to have counsel to defend them. The Gideon decision, written by Alabama’s own Justice Hugo Black, forever changed the criminal justice system in our country. It was one of the most profound decisions in the Supreme Court’s history. Yet now, on the 50th anniversary of the decision, it is all but forgotten. The promise seems to be on the brink of being irretrievably broken and no one seems to care. The Gideon decision had an immediate impact 50 years ago. Within a year, Congress had passed the Criminal Justice Act which created an institutionalized defender system to represent poor people accused of federal crimes in the form of federal public defenders, community defenders and CJA panel attorneys (private attorneys who agree to accept indigent appointments). Likewise, the states in turn began creating their own defender systems to satisfy the constitutional mandates of Gideon. Lawyers from across the country also responded and became public defenders, dedicating their careers to preserving and protecting the promise of Gideon. The institutionalized federal defense function was housed in the judicial branch of the federal government, meaning the oversight and funding came by and through the judiciary funded by the federal judiciary’s budget. So for a time, at least initially, what the Supreme Court may have envisioned came true. On the 50th anniversary of Gideon, the very existence of the institutionalized federal defender system in our country is in dire jeopardy.The ever increasing number of crimes laws passed by Congress and state legislatures over the past 50 years led to an increase in prosecution of at both the federal and state levels. However, there has been a systematic decrease in the funding required to effectively and adequately defend indigent people. This lack of funding over the years has led to budget cuts that have increased caseloads of defenders beyond levels to which any lawyer could provide adequate representation. Practically, this means people languish in jail sometimes for months without seeing a lawyer. Many plead guilty simply to avoid prolonged incarceration regardless of their innocence. Many who go to trial are afforded little in adequate pretrial preparation and for those convicted the burden of proving ineffectiveness of counsel is virtually impossible based on subsequent holdings of the Supreme Court. On the 50th anniversary of Gideon, the very existence of the institutionalized federal defender system in our country is in dire jeopardy. After trying to absorb budget cuts stemming from sequestration by furloughing and laying off federal public defenders across the country, federal defenders are now dealing with the fact that Congress has authorized additional budget cuts for 2014 resulting in federal public defender programs will having to eliminate a third or more of their staff and yet still be expected to provide effective representation. If the federal defender system falls, then the burden would shift to the CJA private lawyers to handle these cases. Many of the CJA lawyers across our country are in private practice in small law firms or are solo practitioners and accept appointed cases at already tremendously reduced rates. They will soon find these rates lowered or the compensation they are paid at the conclusion of a given case deferred for weeks or months. On the state level, many public defender systems across the country are suffering the same fate as their federal counterparts. The constitutionally required defense function of our criminal justice system is on the brink collapse unless meaningful and immediate measures are taken. Despite this stark reality, there seems to be few voices raised and even less heard when it concerns Gideon’s broken promise. While on one hand, a few bar associations across the county allow a speech or two to celebrate the importance of the 50th anniversary of Gideon, most, including my own state and local bar, scarcely seem to notice, let alone advocate or educate, about the issue. Gideon means little to our Congress and state legislatures. The poor, especially the poor accused of crimes, have no lobby in Washington, Montgomery or anywhere else in the country. As for the rest of the country, Gideon means nothing in the day-to-day life of most people, unless and until they themselves, their family member or a loved one is accused of a crime and cannot afford to hire a lawyer to defend them. Sadly, only then would the lack of the constitutional right to counsel will become glaringly apparent. Former Chief Justice Warren Burger once described the criminal justice system as a three legged stool consisting of the judiciary, the prosecution and the defense. All must function together because without one, the stool would fall. If the constitutional mandate of the right to counsel is not guaranteed and protected then the criminal justice system will come to a halt. If lawyers across this country choose not to participate in or perpetuate a failing and broken system, then the system will either collapse or a remedy be forced. Gideon’s promise can be fulfilled; it must be if we, as Americans, wish to proclaim our country the greatest nation of laws in the world. Congress and state legislatures must appropriate the necessary funding to ensure the long-term viability of the defense function, and they must do it now. On the federal level, it is time the defense function, like its counterpart in the Department of Justice, becomes its own separate entity no longer tied to the judiciary for its very survival, but, rather, independent to provide the service it is constitutional required to provide. Finally, it is incumbent on of all of us to recognize that constitutional rights must be acknowledged, exercised and embraced and, if not, they can and will be lost. Nothing should be as chilling as the thought of being accused of a crime and have no one to represent us because we do not have the means to afford such representation. Clarence Earl Gideon had been convicted without counsel. After the landmark decision that bears his name was handed down, he was retried with the assistance of court appointed counsel and was acquitted. Gideon died in 1972. He was buried in an unmarked grave in Missouri until lawyers placed a small maker on the grave. The marker was inscribed with the following quote: “Each era finds an improvement in law for the benefit of mankind.” The promise of Gideon was that improvement. It still is, it still can be, but only if we make it so. The promise of Gideon is broken, but it can and will be fixed if we as Americans believe and act to defend it. John A. Lentine of Birmingham is a criminal defense lawyer. Email: john@sheffieldlentine
Posted on: Wed, 03 Jul 2013 11:35:25 +0000
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