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The Lies We Tell Each Other About the Right To Counsel

Fifty years ago today, the Supreme Court recognized the constitutional right to an attorney for criminal defendants, even when they cannot afford one. Today, however, “the sad truth is that there is no universal right to counsel.”

March 18, 2013

In anticipation of the 50th anniversary of the United States Supreme Court’s landmark ruling in Gideon v. Wainwright, I have spent the past few months reading about the right to counsel in America—the way it was half a century ago, the way it is today, and the way it ought to be if we are to give meaning and effect to the mandate the justices unanimously expressed on the morning of March 18, 1963.

What I discovered—or, rather, what I was reminded to remember—was perhaps best expressed by someone who read the long piece I wrote on Gideon for The Atlantic. The right to counsel, this reader pointedly noted, was just “another lie we tell each other to hide the truth” about unequal justice in America. She is right. For all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today.

Yes, it exists on paper. And in popular mythology thanks to the justices’ ruling in Miranda v. Arizona—“You have the right to an attorney…” But the Sixth Amendment’s fair trial guarantee of competent counsel, part of the panoply of due process protections the Constitution is supposed to guarantee us all, has been systematically neglected and scorned since 1963. It has been legislated and judicially interpreted out of existence for millions of Americans caught up in our criminal justice systems. That’s the truth. The rest is just a lie.

What happened to this vital protection is as simple as the story of Clarence Earl Gideon himself. The Supreme Court in Gideon gave us the right to an attorney if we were too poor to afford one. At the time, the broad obligation to provide lawyers to indigent defendants was considered a reasonable burden that state and local officials, and bar associations, could manage. But it was a different time in America—a time before mass incarceration and widespread criminalization for non-violent offenses.

By 1984, following national spasms of crime and punishment, as criminal prosecutions swamped the nation’s courts and prisons, it was clear that the Supreme Court, Congress, and state lawmakers confronted new choices over the right to counsel. Faced with a flood of new defendants, most of whom were too poor to afford their own attorney, legal and political leaders either could recommit themselves to the promise of Gideon or they could find ways to limit the scope of the ruling—and thus the scope of the right to counsel.

The first path—ensuring that the new wave of indigent defendants would get competent counsel—would have required the expenditure of a great deal of money on public defenders and other resources aimed at fortifying the remedy expressed in Gideon. The second path—acknowledging the limitations of the Sixth Amendment protections for indigent defendants—would require a series of judicial rulings and legislative choices that defined the right to counsel so narrowly as to restore the “unequal justice” that Justice Hugo Black bemoaned in his Gideon opinion.

We know today which path our legal and political leaders chose. Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road. The Court accomplished this mostly in Strickland v. Washington, a 1984 decision in which the justice established such low legal standards for recognizing “effective assistance” of counsel that they effectively gutted Gideon.

Only Justice Thurgood Marshall dissented in Strickland. “My objection to the performance standard adopted by the Court,” he prophetically wrote, “is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave 'reasonably’ and must act like 'a reasonably competent attorney’ is to tell them almost nothing (citations omitted by me)."

Sadly today, as a result of decisions like Strickland (and more recent ones), and as experts at the Brennan Center and elsewhere have amply established, there is no meaningful right to counsel for millions of Americans too poor to afford their own attorney. Too many of these men and women often have to wait in jail for months on petty criminal charges before they are given an attorney. Others are represented only for a few minutes by overwhelmed public defenders. In some states, defendants must talk with prosecutors before getting their own public defenders.

Any constitutional right that is recognized in the breach in such a fashion is really no constitutional right at all. As Professor Stephen Bright of Yale Law School and the Southern Center for Human Rights said a few weeks ago, “it is better to be rich and guilty than poor and innocent” in America today. Of course, that’s precisely what the nation’s leading lawyers and scholars and human rights advocates were saying 50 years ago before the Supreme Court decided the Gideon case. We’ve come so far—and yet here we still are.

We are here, stuck in an unacceptable position, even though the grandees of law and politics know precisely how to solve the problem. It isn’t high calculus. It’s obvious what needs to be done. The Brennan Center will be out soon with a new white paper highlighting reasonable ways—low-cost options, you could say—in which the right to counsel may be better secured. One idea is for state and federal governments to examine over-criminalization of petty offenses and reclassify ones that have no public safety benefit. Another is to increase funding from a variety of sources for public defenders. Third is making public defender offices more effective, including adding a social worker and rigorous trainings.

These aren’t revolutionary ideas or tactics. They are all reasonable and prudent measures. They would secure rights for millions of people whose political power is negligible and whose rights are thus supposed to be protected by our courts of law. Attorney General Eric Holder Friday called this a moral issue and he’s right. He also conceded there is a crisis over indigent defense. This candor is a good start. So is the Justice Department’s Access to Justice Initiative. But now our judges and our elected officials have to act more boldly. If there still is a constitutional right to counsel it cannot be observed in the breach.                     

Indeed, as we begin the next 50 years after Gideon, what’s most striking to me is the vast gulf between what we teach our children about the right to counsel and the truth about the right to counsel. When it comes to this vital right, we are today making a series of choices about the Constitution, and our fellow citizens, that are legally unsound and morally indefensible. If we are honest about the problem, we’ll solve it. If we continue to lie to one another about it, America’s poorest will continue to receive the very second-class justice the Supreme Court once promised it would end.