No Counsel

Fifty Years Later, Right to Lawyer Remains ‘Unfunded Mandate’

The landmark Supreme Court ruling promised everyone a lawyer, regardless of ability to pay. The promise isn’t being kept, reports Chris Opfer.

J. Scott Applewhite/AP

The nation’s highest court ruled 50 years ago today, in the landmark case Gideon v. Wainwright, that a criminal defendant who can’t afford a lawyer has a constitutional right to be provided one. Five decades later activists in states around the country are still trying to force governments to pony up the cash necessary to make the right to counsel a reality. High-profile litigation asks courts to approve caseload limits for overworked and understaffed public-defense lawyers, a move that could pave the way to the funding some say they need to provide adequate representation for their clients.

The Sixth Amendment’s guarantee of legal counsel, on which the ruling in Gideon is based, “is a constitutional requirement that is probably violated far more often than it’s enforced,” says Stephen Bright, a Yale law professor and president and senior counsel at the Southern Center on Human Rights in Atlanta.

Clarence Earl Gideon was arrested in 1961 and charged with breaking into a Florida pool hall. Because state laws in effect at the time limited court-appointed legal representation to capital cases, a trial judge denied Gideon’s request to be provided counsel. He was found guilty and sentenced to five years in prison after serving as his own lawyer at trial. Gideon wrote to the Supreme Court, arguing that his inability to obtain counsel effectively denied him a fair shake at trial.

The court took the case, and on March 18, 1963, it agreed with Gideon, ruling that the Sixth Amendment guarantees indigent criminal defendants the right to free legal representation. Describing what he called “an obvious truth,” Justice Hugo Black explained that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

In response to the decision, state and local governments developed public-defense programs either by contracting cases out to private attorneys or hiring full-time lawyers to represent citizens at the lower end of the income spectrum. But many of these programs simply don’t have the funding to allow them to provide clients the vigorous defense they deserve, says Bright.

“The governments have the money to provide representation, and the Constitution requires that they do it, but the political will simply is not there,” he says. “Many jurisdictions have treated Gideon as an unfunded mandate.”

Tight budgets have meant overwhelming caseloads for many public defenders, spreading resources thin and forcing them to make tough choices about how to allocate their limited time among clients.

In New Orleans, a trial judge recently took the unusual step of barring public defenders with already unmanageable caseloads from taking on additional clients. The judge, Arthur L. Hunter, halted the proceedings in several criminal cases until the defendants could be assigned adequate representation.

Some of those cases, such as the prosecution of Christopher Gordon, are currently on appeal by the district attorney’s office. Gordon was charged with possession of marijuana and heroin, the latter with intent to distribute. Unable to afford a lawyer, he was assigned to a local public defender, but Hunter disqualified her after learning that she was handling more than 180 open cases simultaneously. The American Bar Association recommends that a public defender not take on more than 150 felony cases each year.

Gordon, one of two defendants in his case, represents what Loyola University law professor Bill Quigley—who is representing him on appeal—called the “meltdown of the public-defender system in Orleans Parish” in multidefendant cases. In these situations, each individual defendant is entitled to his own lawyer so as to avoid any potential conflict of interest. For example, the best argument for a defendant in a drug possession case may be that the that the coke, weed, or smack wasn’t his, but instead belonged to co-defendant. An attorney can’t adequately represent two clients pointing the finger at each other, or so the thinking goes.

Lawyers from the conflict division within the Orleans Public Defenders’ office often step in to represent defendants in these cases. But the division has been gutted because of budget cuts in recent years, leaving the four attorneys currently assigned to conflicts cases with what Judge Hunter found were unmanageable workloads.

Underfunding has spiked workloads throughout the office, according to Derwyn Bunton, chief district defender for Orleans Parish. “The core point that public defenders are understaffed and overburdened is true, both in New Orleans and throughout the South,” Bunton says.

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Bunton’s office has seen its state funding plummet by more than $3 million in the last three years, while financial support from the city declined by about one third in 2013 alone. His lawyers—who represent more than 80 percent of criminal defendants citywide—argue cases against a district attorney’s office roughly twice its size.

The situation in the Big Easy isn’t uncommon. In New York, state law has authorized courts to appoint lawyers on behalf of indigent criminal defendants since 1881. A pending class action there challenges what opponents claim is an underfunded, patchwork system of poorly trained and overworked court-appointed attorneys—the result of which deprives poor defendants their right to meaningful counsel.

One of the New York class members is a mother of two who lost her nursing job and home after spending four months in jail following her arrest for sneaking a small amount of marijuana into the prison where her husband was incarcerated. Her lawyers claim that she would have been released pending trial if not for the egregious mistakes made by her court-appointed counsel.

Meanwhile, cases in Florida and Pennsylvania are asking courts to decide whether public-defender offices can simply decline new cases once their lawyers reach maximum capacity, a practice approved by Missouri’s highest court last year.

The end game for these actions is not only to ensure that the specific defendants get adequate representation, but to force state and local governments to properly fund public-defense programs.

While Bright says the litigation has the potential to be “important and influential,” any changes are likely to occur state by state. Not only are more than 95 percent of criminal prosecutions tried in state courts, but indigent-rights advocates may also have a better shot at making their cases before local tribunals. The Supreme Court operates under a strong presumption that the lawyers in any given case have provided adequate counsel, but judges in states like Louisiana assume that those with excessive caseloads are ineffective.

In the short term, Bunton points out that judicially enforced caseload limits are likely to make matters worse by resulting in longer waits for criminal defendants who can’t pay for a lawyer, particularly those behind bars awaiting trial. “It might spur change; it might not,” Bunton says. “But it definitely means some people are going to be spending a whole lot more time in jail.”