ESSAY CONTENTS INTRODUCTION I. LAWYERS MATTER, MONEY MATTERS II. WHY? III. THE LESSONS CONCLUSION INTRODUCTION
The fiftieth anniversary of Gideon v. Wainwright (1) deserves celebration. Gideon's assurance of counsel to all facing a prison sentence undoubtedly has meant that many who otherwise would have been convicted and imprisoned, some wrongly, were able to be free. In fact, there have likely been countless instances of prosecutors not even going forward simply because of the presence of defense counsel. In a criminal justice system where almost all convictions are gained by guilty pleas--ninety-seven percent in federal court and ninety-four percent in state court (2)--the presence of defense attorneys surely often makes an enormous difference in the nature of the plea deal and the length of the sentence.
None of these effects can be measured. It is not possible to know the number of people who were acquitted who would have been convicted, or the number of cases not brought, or the length of the sentences not imposed. But nor can these benefits be denied by anyone with even a passing familiarity with the criminal justice system.
The importance of Gideon as a symbol also cannot be overstated. An adversary system of justice requires some semblance of equality between the two sides. Gideon is a crucial attempt to make that a reality. It holds that all facing the power of the state to take away their liberty, however poor, are entitled to representation. Under a Constitution that often is described as being a charter of negative liberties, restrictions on government power, and not affirmative rights, (3) Gideon holds that there is something the government must pay for and provide: an attorney to those who cannot afford one and face the loss of their liberty by imprisonment. As the Court powerfully declared in Gideon:
[R]eason 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. This seems to us to be an obvious truth.... 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. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. (4) Yet while Gideon is celebrated, the reality of its implementation must be lamented, too. A decade ago, on the fortieth anniversary of Gideon, an American Bar Association study concluded: "Forty years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.... Funding for indigent defense services is shamefully inadequate." (5) Over the last decade, the problem undoubtedly has gotten much worse as the severe recession has caused budget crises in states across the country and cuts in funding for courts and all the services they provide. (6)
As someone who handles criminal appeals, I have represented clients whom I believe to be innocent who were convicted because of ineffective assistance of counsel. (7) I have also represented clients whom I am convinced received death sentences because their trial lawyers were ineffective. (8) In instances like these, I wonder whether these individuals really were better off because of Gideon. Perhaps if they had been left to represent themselves they would have done better, or perhaps the courts would have looked more closely at their cases. Gideon creates such a strong presumption that the presence of counsel has insured adequate representation when the reality is so very different. As Senator Patrick Leahy has remarked, "Too often individuals facing the ultimate punishment are represented by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain ineffective. Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense." (9)
In these remarks, I want to focus on what explains Gideon's failure. I focus specifically on the failure to adequately fund the right to counsel that Gideon promised. Part I describes the crucial importance of funding to fulfilling the promise of Gideon v. Wainwright. Part II explains why the right to counsel has been inadequately funded and points to two interrelated phenomena: The Court imposed an unfunded mandate on state governments without any enforcement mechanism, and the Court then undermined the one remedy available to the judiciary, the ability to find ineffective assistance of counsel. Part III concludes by drawing lessons from Gideon for other areas, including the attempt to extend it to the civil arena. Funding inherently will be inadequate when reliance is on state and local governments to provide services for the poorest in society.
To be clear, I join the celebration of Gideon and its importance. It is a "watershed" rule of criminal procedure. (10) I realize, as stated above, that so many of its benefits never can be quantified and can be so easily taken for granted. But I also lament its unfulfilled promise, and that is the focus of my discussion.
LAWYERS MATTER, MONEY MATTERS
My premise is a simple one: the quality of representation often matters in criminal cases, and money often is crucial in determining that quality of representation. Of course, there are instances where the outcome is the same no matter how good or bad the defense lawyer. Of course, there are instances where the best-paid lawyer does a poor job or the inadequately compensated attorney is terrific. But, that said, any one of us facing criminal charges would want the best lawyer we could get, and being able to pay for him or her matters.
The most powerful evidence of this comes from studies that have compared the outcomes of cases depending on how the lawyer is compensated. The Bureau of Justice Statistics found that those with publicly funded counsel are more likely to be incarcerated for longer than those with privately paid attorneys. (11) It concluded: "Of defendants found guilty in Federal district courts, 88% with publicly financed counsel and 77% with private counsel received jail or prison sentences; in large state courts, 71% with public counsel and 54% with private attorneys were sentenced to incarceration." (12)
Moreover, among those cases involving publicly paid attorneys, the sentencing outcome varies depending on whether there is a public defender or appointed counsel. Similarly, in federal court, outcomes depend on whether there is a federal defender or an attorney appointed under the Criminal Justice Act. (13) Professor Radha Iyengar has concluded that "[d]efendants with CJA panel attorneys are on average more likely to be found guilty and on average to receive longer sentences. Overall, the expected sentence for defendants with CJA panel attorneys is nearly 8 months longer." (14)
The same difference has been found in state courts. James M. Anderson and Paul Heaton compared the outcomes in murder cases in Philadelphia courts depending on whether the defendant was represented by a public defender or an appointed lawyer from a list. (15) They found that, compared to appointed counsel, public defenders reduce their clients' murder conviction rate by 19% and lower the probability that their client will receive a life sentence by 62%. (16) Public defenders, as compared to appointed counsel, reduce overall expected time served in prison by 24%. (17) To say the obvious, these are dramatic differences.
Many studies have been done in capital cases and they are remarkably consistent in documenting that a conviction and death sentence in a capital case is least likely with a privately paid lawyer, and that those with government-paid attorneys are much better off with public defenders than with appointed counsel. (18)
The advice to a person facing prosecution, especially for a serious crime, would be clear: if you can, hire your own attorney. Failing that, do all you can to get representation by a public defender rather than by a court-appointed attorney. Why? Anderson and Heaton offer a compelling explanation:
We find that, in general, appointed counsel have comparatively few resources, face more difficult incentives, and are more isolated than public defenders. The extremely low compensation for appointed counsel reduces the pool of attorneys willing to take the appointments and makes extensive preparation economically undesirable. Moreover, the judges selecting counsel may be doing so for reasons partly unrelated to counsel's efficacy. In contrast, the public defenders' steady salaries, financial and institutional independence from judges, and team...