Legal representation for the poor: can society afford this much injustice?

• Jurisdiction: United States
• Author: Bright, Stephen B.
• Date: 22 June 2010

A New Yorker cartoon depicts a lawyer facing his client, asking the critical question: "You've got a pretty good case, how much justice can you afford?" Of course, the promise is equal justice for all. But that is an aspiration, not reality. The poor person accused of a crime cannot afford any justice. So how much justice is society going to provide? Competent counsel for the accused, with the resources needed for investigation and consultation with experts, is essential for the proper working of our adversary system of justice. States can afford to provide high quality representation for the accused--appropriate for the high stakes involved: liberty or even life--but most states are not willing to provide a decent level of representation for poor people accused of a crime. The result in many places is a system that lacks legitimacy and credibility, sometimes does not provide reliable results, and, on occasion, produces great miscarriages of justice.

The criminal justice system is overwhelmed. In the 1970s, there were about 200,000 people in prisons and jails in the United States. (1) That number had held, relative to the population, pretty steady throughout our history. (2) Then over the next forty years there was an increase of 800 percent, (3) so that today there are 2.3 million men, women, and children in our prisons and jails. (4) The United States now has the highest incarceration rate of any country in the world. (5)

During this time, the federal government has awarded millions of dollars to state law enforcement agencies and state prosecutors. When a federal grant is made to create a drug task force or some other law enforcement agency, more people will be arrested. They will need lawyers when they are prosecuted in the criminal justice system.

At the same time, state legislatures throughout the country, which never funded indigent defense adequately to begin with, have not even begun to keep up with this huge, crushing number of cases that were dumped on the state courts. And the courts have often failed in their responsibility to enforce the Sixth Amendment right to counsel. When they have enforced that right, many have done so grudgingly.

The people who have made the right to counsel a reality in this country and in Missouri are public defenders and other lawyers who have taken on cases and represented the poor despite overwhelming caseloads and inadequate resources. They have worked long hours under the immense pressure of having people's liberty--and sometimes people's lives--in their hands. I have been to Missouri many times over the last 30 years and have great respect for its public defenders. They take on great challenges and do heroic work. (6) People working in all positions in public defender offices are to be commended and thanked for the work that they do. It is sometimes a thankless job. There are many times when one cannot help but say, "Can this cup be passed?" And yet, they stay with it year after year and share their expertise with younger lawyers who come into the system, as well as with the clients that they serve.

Public defenders all over this country face excessive caseloads. I had the good fortune of serving as a public defender in an office where that was not a problem. If a lawyer had too many cases, she could decline any new cases until some of her cases were resolved. That was because in 1969, Barbara Babcock (7) and Norman Lefstein8 started the Public Defender Service of the District of Columbia. (9) It has been, and continues to be, an exemplary program that demonstrates what public defender offices should be like, with reasonable caseloads, an outstanding training program, investigative services, and resources for experts. (10)

Unfortunately, the kind of representation provided by the District of Columbia Public Defender Service is not provided to those accused of crimes in most state courts, where the overwhelming majority of people accused of crimes are prosecuted. (11) Almost all of them are poor and, therefore, are constitutionally entitled to counsel to represent them. But what kind of representation is going to be provided by the same government that is committed to convicting them and denying them their liberty and, in some cases, even their lives? Why would the government frustrate its own purpose by providing good legal representation to people it is trying to convict, imprison, and even execute? The prosecution's chances of obtaining a conviction improve if the defendant is poorly represented.

The story of the constitutional right to counsel starts with an inspiring, uplifting story, but goes downhill from there. Clarence Earl Gideon was arrested for breaking into a pool hall in Panama City, Florida. (12) He demanded a lawyer at his trial, but did not get one; he was convicted and sent to prison. (13) He then wrote his own petition to the United States Supreme Court in pencil on prison paper that had the prison's correspondence regulations printed at the top of each page. (14) His petition is only five pages, (15) but it is not bad--better than the work some lawyers do these days, unfortunately. At one point, he says, "Counsel must be assigned to the accused if he is unable to employ one, and incapable adequately of making his own defense." (16) He winds up his petition with a wherefore clause asking that the court provide him with lawyers. (17)

The Supreme Court granted certiorari. (18) It appointed Abe Fortas, a prominent lawyer, then with the law firm of Arnold Fortas & Porter, to represent Gideon. (19) Fortas argued the case before the Court. (20) At the time, a defendant had a right to counsel only in capital cases and in cases where the penalty was severe, the issues difficult, and the defendant inexperienced. (21)

Twenty-three states supported Gideon's position that a poor person accused of a crime has a right to a lawyer. (22) Walter Mondale, the Attorney General of Minnesota at the time and later the Vice President of the United States, led the effort to have states file an amicus brief in the Supreme Court saying that, if the criminal justice system was to be fair, poor people accused of crimes must be represented by counsel. (23) Only two states, North Carolina and Alabama, supported Florida's position that poor people are not entitled to a lawyer. (24) The Supreme Court unanimously held the Sixth Amendment applicable to the states, finding that every person facing a felony charge is entitled to a lawyer. (25)

Gideon went back to Panama City. (26) At a new trial, where he was represented by attorney Fred Turner, he was acquitted. (27) Anthony Lewis wrote the next day in the New York Times, "The difference between the two trials was that this time Mr. Gideon had a lawyer." (28) Lawyers make a difference.

Abe Fortas was later appointed to the Supreme Court, where he wrote one of the more important right to counsel cases, In re Gault, which gave children the right to counsel in delinquency cases. (29)

In the book Gideon's Trumpet, Anthony Lewis wrote:

It will be an enormous social task to bring to life the dream of Gideon v. Wainwright--the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. (30) Of course, Gideon v. Wainwright is not a dream; it is a constitutional requirement. The Court did not say it is a good idea to provide lawyers for people accused of crimes; it said that lawyers are constitutionally required. There is no constitutional requirement to pave a road to anywhere. But there is a constitutional requirement to provide lawyers to poor people accused of crimes. The Supreme Court later held that a lawyer must be provided to the accused in any case in which there could be a loss of liberty. (31) It is not optional. It is not merely a good idea. It is absolutely required.

But Gideon was a judicial opinion. It was an unfunded mandate from the federal government. There was no agency to go about administering the daunting task of implementing the decision. It was going to be enormously costly if done right, and a lot of states resisted spending any money on it and did it wrong. Some states conscripted lawyers. Any member of the bar was required to represent people accused of crimes. A lawyer might specialize in tax or real estate work, but, when his or her turn came, the lawyer was assigned a case, spent as little time as possible on it, and moved on. That is still the practice in some jurisdictions even today. In the federal southern district of Georgia, every lawyer who is a member of the bar has to take criminal cases, although they are compensated for their work. (32) That requirement is ridiculous and outdated. Remarkably, two Missouri prosecutors recently advocated conscripting new lawyers, requiring them to "volunteer 40 hours per year of their time to representation of indigent defendants ... for the first five years." (33)

Robert Kennedy, who was the Attorney General of the United States at the time Gideon was decided, said that the poor person accused of a crime has no lobby. (34) And that is the great problem. When Gideon's decision came down from the Supreme Court, there was no lobby in the legislatures for the right to counsel. However, within days of the Gideon decision, Florida's then-governor Farris Bryant recommended to the state's legislature the creation of a public defender system in response to the opinion. (35) Within two months, Florida's legislature passed a law creating a public defender office in every judicial circuit in Florida, parallel to the State's Attorneys' Offices. (36) As a result, a public defender system has developed throughout Florida since 1963. Some of those offices are among the most outstanding public defender offices in the country.

The work...