Valuing Gideon's gold: how much justice can we afford?

• Author: Garcia Hernandez, M. Clara
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. WHO WAS GIDEON? II. THE EL PASO PLAN: A TEN-KARAT GOLD NUGGET III. NO JURY, NO FOUL: GIDEON'S PLEA IV. GIDEON THROUGH THE LABYRINTH OF MENTAL ILLNESS CONCLUSION: HOW MUCH JUSTICE CAN WE AFFORD? INTRODUCTION

In the fifty years since sounding Gideon's trumpet, (1) the Supreme Court has extended Gideon's reach to other contexts and classes of defendants. State and local governments have heeded this call, creating and reforming indigent defense systems. Why then do equal justice and fundamental fairness continue to elude us? Can they ever be anything more than ideals? Are they, like maturity, a road but never a destination? Of what value are Gideon and its progeny if individuals and communities today receive only as much justice as they can afford?

To deliver effective assistance of counsel, public defenders and other assigned counsel must meet certain performance criteria, carry reasonable caseloads, count on obtaining the necessary money and resources, and have ready access to a team of experts, investigators, social workers, and support staff. National defense standards addressing these crucial factors are readily available to help communities comply with Gideon's call. (2) Sadly, however, these standards rarely come with the necessary funding. The price of fundamental justice, equal access to competent counsel, and due process is steep in our deeply criminalized, widely institutionalized nation. Communities struggling to squeeze justice into their budgets dismiss these standards as unaffordable or unrealistic. Rarely do communities consider funding this mandate by reducing arrests and incarceration for petty crime, or by reducing prison sentences.

Gideon's fiftieth anniversary compels reflection and evaluation of our own community's and office's efforts to mine Gideon's gold for each of our clients. Painful and demoralizing, valuable and encouraging, this journey reveals more questions than answers and causes more concern than celebration. Still, we remain unapologetic in our hope that one day fundamental fairness and justice will mean the same thing and we will not need to place the word "equal" before the word "justice."

We begin this Essay by exploring briefly Clarence Gideon's personal story, one which parallels that of so many public defenders' clients. We then discuss the seed of indigent defense reform in our community, El Paso, Texas, including the creation and growth of our office, the El Paso County Public Defender's Office. In the final two Parts, we discuss our struggle to provide effective representation in a pretrial and plea practice, particularly to our mentally ill clients.

1. WHO WAS GIDEON?

   As we consider Clarence Earl Gideon's story, we see many men whom we have defended. Gideon was born in Missouri in 1910, lost his dad at the age of three, and quit school and ran away from home before entering high school. (3) Thus began his cycle of aimlessness, poverty, property crimes, incarcerations, and imprisonment. (4) He drifted through several states, married four times, and fathered three children who were taken away by child welfare authorities. (5) In 1961, Gideon was charged in Florida with the felony offense of breaking and entering with the intent to commit a misdemeanor. (6) He was forced to try his own case before a jury because he could not afford a lawyer. (7) The Supreme Court already had recognized the right to counsel, but left the states to decide how far to extend this right beyond capital cases. (8) The jury found Gideon guilty and sentenced him to five years in prison. (9) Gideon wrote a petition to the Supreme Court, arguing that Florida's failure to appoint a defense lawyer violated his Sixth Amendment right to counsel. (10) In answering his petition, the Court transformed our criminal justice system:

   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. 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. (11) Gideon rocked the criminal justice system, giving poor defendants a chance at a fair trial with a competent lawyer and charging the states with delivering its promise. Unfortunately, Gideon left huge untreated gaps where the disease of rationed and unequal justice flourished and engendered challenge and reform. Gideon's progeny have tried to substantially plug these gaps, extending the right to counsel to include misdemeanors (12) and juvenile cases, (13) and defining minimum trial standards. (14) Yet, states have doggedly refused to either pay the full price of justice or to lower its cost by reducing prosecutions.

2. THE EL PASO PLAN: A TEN-KARAT GOLD NUGGET (15)

   If Gideon were arrested in Texas today, (16) he would be entitled to a court-appointed lawyer, but the devil would be in the details. How soon would he see his lawyer? Would she be a public defender? How competent would she be? What resources would she have? Would Gideon receive a fair plea offer? How soon could he get his day in court? The answers would depend on the particular county that arrests him, the particular court that adjudicates the matter, and the particular prosecutor who is assigned to the case. We have neither a state public defender system nor any other statewide system that ensures access to appointed counsel. (17) Gideon would fare better in El Paso than in most Texas counties, but he would still find justice rationed.

   Indigent defense reform took root in El Paso in the mid-1980s. Inmates charged with felonies in the El Paso County Jail filed federal suit under 42 U.S.C. [section] 1983 to enforce their rights to appointed counsel. (18) Private lawyers were appointed upon indictment, an average of over one hundred days after the arrest. (19) The district attorney's office routinely failed to indict or reject a case within the required ninety days, and inmates were not being released as required by law. (20) Unable to bond out or to hire a lawyer, poor inmates charged with felonies languished in jail. At the time of the suit's filing, El Paso County had no formal or written indigent defense plan and no public defender office.

   El Paso settled the lawsuit with a consent decree and memorandum of understanding known as "The El Paso Plan" (the Plan). (21) The Plan created our office and a jail magistrate responsible for the early appointment of counsel. It established a hybrid system of representation which still exists today, where 50% of all felony appointments would be ours, while the other 50% and all misdemeanors would still be handled by assigned private counsel. Today, we handle approximately 60% of the felony appointments, 50% of the capital appointments, 25% of the misdemeanor appointments, and 50% of the juvenile appointments. (22) We also staff several problem-solving and drug courts, and we represent noncustodial parents facing criminal contempt for failure to pay child support, unknown fathers in child abuse and neglect proceedings, and county officials facing ethics complaints. The federal consent decree has secured our existence despite economic downturns and political battles with the judiciary and the private bar, but it has not guaranteed necessary resources.

   El Paso is located at the westernmost tip of Texas. It shares an international border with Juarez, Mexico, an interstate border with New Mexico, and is home to Fort Bliss, a major army base. A significant number of residents do not speak English. El Paso had an estimated 2011 population of 820,790: 81.4% Hispanic, 13.7% non-Hispanic white, and 3.6% African American. (23) Our median income and percentage of residents living below the poverty level compares unfavorably with national figures. (24) Nearly 30% of El Pasoans are high-school dropouts, (25) and our unemployment rate was 10.3% in 2011. (26) In 2011, for the second consecutive year, El Paso had the lowest crime rate of any U.S. city with a population greater than 500,000, and it has been one of the three safest in the country every year since 1997. (27)

3. NO JURY, NO FOUL: GIDEON'S PLEA

   Our trial rate the past two years has been 1.1% for felonies, and less than 0.5% for misdemeanors. (28) Although our trial rate for juvenile cases (felony and misdemeanor combined) jumped from 2.5% to 9% from 2011 to 2012, (29) the uncomfortable fact of criminal practice is that most criminal cases never go to trial. A recent article noted that the percentage of felonies that proceed to trial in nine states fell to 2.3% in 2009, from 8% in 1976." (30) Similarly, 97% of all federal criminal cases plead out. (31)

   Clearly, ensuring that a competent--even brilliant--lawyer is standing up for the accused at trial does virtually nothing for the vast majority of poor people who are accused of crimes. Yet, criminal defense training doggedly continues to focus on trial technique, to the exclusion of pretrial and plea practice. We, as criminal defense lawyers, doggedly continue to focus on trial performance as the ultimate measure of our lawyering skills. However, we need to understand our ethical and professional duty to our clients who will never stand trial. All other players in the system (prosecutors, judges, magistrates, detention personnel, probation officers, and communities) must also acknowledge their own duty to...