ESSAY CONTENTS INTRODUCTION I. GIDEON AND THE ALLEN REPORT II. THE SYSTEM NOW A. The Big Picture B. The Federal Defenders of New York III. FAIRER PROCESS: THEN OR NOW? CONCLUSION INTRODUCTION
There seem to be two bad options when writing about my work as a federal public defender: describe it as it is and sound like a lunatic preaching the end of days, or engage in a more nuanced discussion and risk minimizing the injustices that exist. And when commemorating the fiftieth anniversary of Gideon v. Wainwright, (1) there is yet another balancing act: recognizing its considerable achievement while avoiding claims of progress where none exists. In this Essay I try to navigate those dangers by posing and attempting to answer the following question: would an indigent federal defendant prefer to be prosecuted in the system as it existed in 2963 with an ill-equipped, unpaid lawyer (or none at all), or would he prefer today's system? Although the answer surely depends on many factors, I conclude that in far too many scenarios, the rational defendant would choose 1963.
In answering the question, I examine who the defendants in the federal criminal justice system are and what opportunities they have for meaningful advocacy. I try not to rely on substantive law except to the extent that substance affects process. If the choice between 1963 and today was put to a defendant purely as a matter of substantive law, the answer would be far too easy. Federal criminal law has expanded so much, (2) and grown so much more punitive, (3) that 1963 would win in a landslide. But the process question is a closer call and directly implicates the holding of Gideon. On the one hand, the provision of funded and better-trained lawyers is an improvement that speaks for itself. On the other hand, even as lawyers have become better funded and trained, extraordinary damage has been done to the aspect of the criminal justice system that makes lawyers so necessary and valuable: the adversarial process. Extreme severity, the control of that severity by prosecutors, and high rates of pretrial detention have so curtailed defense lawyers' ability to do those things that Gideon considered vital-testing evidence, pressing arguments, and challenging the government's allegations before a neutral arbiter--that many defendants today would be better off in the system as it existed in 1963, with no lawyer or an incompetent one.
It may seem strange to discuss federally appointed counsel in a symposium about Gideon. After all, federal defendants obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, (4) and Gideon was a decision about incorporating the right and applying it to the states. Nonetheless, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), (5) appointed attorneys were not paid to represent indigent federal defendants. (6) Nor was there any funding for case-related expenses, much less investigators or experts. (7) Gideon, along with the highly influential report of Professor Francis Allen to then-Attorney General Robert F. Kennedy (the Allen Report), (8) was a significant reason for passage of the CJA and for the creation of a funded federal defense system.
Part of why Gideon was so powerful was the simple logic and appeal of its reasoning. We operate in an adversarial system, governed by complex rules, and it works best when both sides engage on equal footing before a neutral arbiter--judge or jury. We have lawyers for the prosecution; therefore, we should have lawyers for the defense. "Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime," the Court found, and "reason and reflection require us to recognize that in our adversary system of criminal justice, 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." (9)
And yet today, our criminal justice system is far from an adversary system with "fair trials." In 1963, nearly 15% of all federal defendants went to trial; in 2010, the figure was 2.7%. (10) As the Supreme Court recognized last year in Missouri v. Frye (11) and Lafler v. Cooper, (12) "criminal justice today is for the most part a system of pleas, not a system of trials." (13) Although the Court's recognition of that reality was important (and overdue), the statement also reflected a sad acceptance of a system thoroughly unmoored from its adversarial foundation.
In this Essay, I begin with a brief overview of federal criminal practice in 1963 and the impetus for the passage of the Criminal Justice Act of 1964, including Gideon and the Allen Report. I then discuss today's practice from my perspective as a federal public defender. I draw upon examples that illustrate the ways in which increased prosecutorial power disproportionately impacts poor people and minorities and greatly diminishes the more egalitarian process that Gideon was meant to champion. I attempt to demonstrate how we have moved away from an adversarial process toward an inquisitorial one and how that movement has affected the right to counsel. (14) In so doing, I discuss the right to counsel broadly and functionally, i.e., not just as the right to a warm body with a law degree, but as the right to do what we expect good defense lawyers to do: vigorously challenge the government's view of the facts and law.
I should note that in recent years, there have been rays of light for proponents of the adversarial process. Most prominent are the Apprendi line of cases, (15) including United States v. Booker, (16) which struck down the mandatory nature of the Federal Sentencing Guidelines, and Crawford v. Washington, (17) which gave teeth to the Sixth Amendment right of confrontation. But in the overall scheme of the federal criminal justice system, those cases represent only small corrections to an otherwise overwhelming movement toward prosecutorial power and inquisitorial process.
GIDEON AND THE ALLEN REPORT
In April 1961 Attorney General Robert F. Kennedy created a committee to "identify some of the principal problems posed for the system of federal justice by accused persons of limited means and to offer suggestions for their solutions." (8) He appointed Professor Francis A. Allen to chair the Attorney General's Committee on Poverty and the Administration of Justice, and over the next two years Professor Allen and his colleagues studied the federal criminal justice system. The Allen Report proposed legislation that became the template for the landmark Criminal Justice Act of 1964. (19) The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon. (20)
At the time, a person accused of a federal crime who could not afford a lawyer was provided assigned counsel, but counsel was not paid-for hours worked or for case-related expenses. (21) In the absence of any congressional action after Johnson v. Zerbst, federal courts had placed "the entire burden of representation upon appointed attorneys who receive no compensation from the court, have available no fund to pay the cost of most essential defense services, and who in general do not receive compensation for even out-of-pocket expenses." (22) The system was unfair to both counsel and client, and woefully inadequate. To spend any significant time on a case was an expensive proposition. Those who signed on for the bargain tended to be inexperienced and unprepared: "A prominent defect is the dependence upon young, inexperienced lawyers for all but the most difficult or serious cases. The typical assigned counsel is little versed in the technicalities of the criminal law or the questioning of accused persons, and has had little if any previous courtroom experience." (23)
Across the country, the systems for assigning cases varied widely. In many small jurisdictions, the process was highly informal: judges appointed friends, acquaintances, or whoever happened to be in the courtroom. In larger jurisdictions, lawyers often either volunteered to be on a list of appointed counsel or were conscripted onto the list by virtue of their membership in the federal bar. (24)
In 1962, two Harvard Law Review editors researched the state of indigent defense in federal courts by compiling surveys and data covering ninety percent of federal districts, and engaging in field observations and interviews with federal judges and lawyers in nineteen major cities. (25) In describing the typical representation, they noted that "counsel's role is generally limited to appearances at arraignments and sentencing, discussions with his client and the prosecutor, and occasionally a brief investigation of the case in order to uncover mitigating circumstances." (26) Most respondents to the survey estimated that assigned counsel typically spent "less than three hours in out-of-court preparation, and in at least three-fifths of the cases he makes only one or two brief appearances in court." (27) If a client pleaded guilty, "a hurried ten-minute conference in a corner of the courtroom [was] often the sole prelude" to the plea. (28) Sadly, despite those findings, ninety-three percent of respondents to the survey considered the thoroughness of assigned counsel's preparation at least "adequate" and twenty percent found it "very adequate." (29)
The vast majority of judges reported that they had little difficulty finding counsel to appoint, citing the "considerable prestige of the federal courts" and the desire of younger lawyers "to become known to the district judge and other federal officials." (30) They also noted that "attorneys would be reluctant to refuse a judge's request when they might later have to appear before him on an important matter." (31)
In examining this system, the Allen Report concluded that the failure to provide funding for counsel did...