Gideon at 50: Three Reforms to Revive the Right to Counsel

April 9, 2013

In Gideon v. Wainwright, the Supreme Court recognized the constitutional right to an attorney for criminal defendants who could not afford one. But that was 50 years ago. Our criminal justice system has grown dramatically since then — without the funding necessary for public defenders to keep up with growing caseloads and resource demands. Today, public defense offices are so overworked and underfunded that clients are not getting the legal defense they were guaranteed, further feeding our nation’s mass incarceration problem. In this report, Thomas Giovanni and Roopal Patel examine the numerous challenges public defenders face in providing legal representation to poor clients and propose three common sense solutions to ensure poor defendants get the legal representation they  need.

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Executive Summary

In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that criminal defendants have a constitutional right to counsel, even when they cannot afford one.

But 50 years later, Gideon’s promise remains unrealized.

Despite radical changes to our criminal justice system over the last half century, state and federal governments have not committed the funding necessary for public defenders to keep pace with the rising flood of criminal cases.

Many public defenders lack the staff, time, training, and resources to investigate each case adequately or prepare a robust legal defense. Often, they end up spending only minutes per case due to overwhelming and unrealistic caseloads. As a result, they are simply unable to provide clients with their constitutional right to counsel, effectively making Gideon an unfunded mandate at a time when public defenders are needed most.

Today, we live in an era of mass incarceration. The United States leads the world in number of people in prison. After 40 years of the War on Drugs and “tough on crime” policies, there are currently 2.3 million people behind bars — disproportionately people of color. Nearly half the people in state prison are there for nonviolent crimes, and almost half the people in federal prison are there for drug crimes.

According to the American Bar Association (ABA), researchers estimate that anywhere from 60 to 90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction. Yet most public defenders are unable to meet this demand due, in part, to the deluge of low-level charges and misdemeanor cases.

To make matters worse, prosecutors often bring charges against defendants that are far higher than warranted by the facts of the case, and defenders often do not have time or resources to assertively negotiate with prosecutors in plea discussions. Defendants are then left to accept unfair plea deals rather than risk trials that may leave them behind bars for even longer.

As this broken process repeats itself in case after case, the systemic result is harsher outcomes for defendants and more people tangled in our costly criminal justice system. The routine denial of effective legal representation for poor defendants, coupled with the over-criminalization of petty offenses, feed our mass incarceration problem at great social and economic costs.

Reports estimate that taxpayers spend $79 billion a year on corrections nationwide, with an average of $31,286 per state prisoner. Surely, there are better ways to spend this money — on higher education, infrastructure, job creation, or targeted crime prevention programs.

Fortunately, fixes to our criminal defense system are not out of reach. Federal, state, and local governments can implement reforms to help reduce unnecessary incarceration and restore the right to counsel for poor people.

This paper examines how Gideon’s unfunded mandate impacts public defenders and our criminal justice system and identifies three common-sense solutions to move the country toward a more functional and fair system of public defense:

  1. Determine which petty offenses can be safely reclassified into non-jailable civil infractions, or legalized. Federal and state governments should analyze their criminal statutes and determine which petty offenses can be reclassified or removed without negatively affecting public safety. Reclassification of these offenses would greatly reduce demands on public defenders, law enforcement, prosecutors, courts, jails, and corrections staff and redirect resources toward public safety priorities.
  2. Increase funding for public defense from likely and unlikely sources. States should increase funding to public defender offices so that it is proportional to the offices’ caseloads. The federal government should also increase grant funding for state and local public defense, especially by encouraging more funding through the Edward Byrne Memorial Justice Assistance Grant Program (Byrne-JAG), a grant program designed to provide broad federal support to state and local criminal justice systems. Additionally, private law firms can mobilize their pro bono resources by sending a rotation of associates to work in public defender offices. These associates can assist clients while gaining valuable trial and litigation skills.
  3. Increase effectiveness of public defense by funding regular trainings for attorneys and adding social workers. States should sponsor rigorous and systematic trainings for public defenders to improve legal representation in the face of high caseloads. States should also fund social workers in public defender offices to help clients reintegrate into their communities so that they do not reoffend. Ending the cycle of recidivism reduces the demands on public defenders and the rest of the criminal justice system.

Gideon at 50: Three Reforms to Revive the Right to Counsel