The appointment of counsel to indigent defendants is not enough: budget cuts render the right to counsel virtually meaningless.

• Author: Mandel, Roberta G.

Forty-five years ago, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court recognized that the Sixth Amendment to the United States Constitution guarantees all indigent criminal defendants the right to a lawyer at the state's expense. Justice Black, writing for the Court, explained the rationale behind a criminal defendant's right to counsel as follows:

[R]eason and reflection requires us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.... Government, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. (1)

The Court explicitly expanded the right to counsel in state courts to defendants charged with misdemeanors seven years later in Argersinger v. Hamlin, 407 U.S. 25 (1972). Justice Powell, recognizing the new burdens on the criminal justice system, noted in his concurring opinion that the "decision could have a seriously adverse impact upon the day-to-day functioning of the criminal justice system." (2) Justice Burger's concurring opinion, however, expressed confidence that the legal profession could meet the challenge: "The holding of the Court may very well add large new burdens to a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it." (3)

Although the Court's mandates to provide counsel to indigents charged with felonies and misdemeanors led to a rapid increase in criminal defense work, the Court provided no guidance or models for organizing or funding the states' indigent criminal defense systems. The Court gave the states broad discretion to fashion policies and laws to effectuate the overall goals of effective assistance of counsel and fair trials. Consistent with the Court's dedication to federalism, states were free to adopt whatever system they wished. In response to the Gideon mandate, the Florida Legislature created public defender offices in each of Florida's judicial circuits.

The Supreme Court subsequently extended the Sixth Amendment right to counsel to include effective assistance during all critical stages of the proceedings against indigent criminal defendants. (4) The Court also guaranteed the right to counsel to indigent defendants during the first appeal of a criminal conviction. (5) However, it took the Court an additional 22 years to guarantee effective assistance of counsel on that same first appeal. (6)

Due in part to the fact that the Court never gave any direction to the states with regard to funding indigent criminal defense, the public defender offices around the country consistently have budgetary problems and overwhelming caseloads.

The National Advisory Commission (NAC) on Criminal Justice Standards and Goals, Task Force on Courts, Ch. 13, The Defense (1973), recommended that full-time public defenders not accept more than 150 felony cases during a year; not more than 400 misdemeanor cases; not more than 200 juvenile cases; and not more than 25 appeals. The NAC caseload standards were adopted by the National Legal Aid and Defender Association and also by the American Council of Chief Defenders. While the ABA Standards Relating to Providing Defense Services do not endorse specific caseload limits, it does state that defenders should not "accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations." (7)

In 2006, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-441 in response to the numerous crises in public defense systems across the country. (8) Opinion 06-441 advises public defenders (9) to refuse to accept new clients or to withdraw from existing client relationships when excessive caseloads interfere with their ability to provide all of their clients with the high standard of representation provided in the ABA's Model Rules of Professional Conduct. (10) Model Rules 1.1, 1.3, and 1.4 specifically direct that a lawyer shall provide competent, diligent representation to a client, and shall consult with the client and keep the client properly informed about the case. (11) In pertinent part, Opinion No. 06-441 states:

If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new assignments. Once the lawyer is representing a client, the...