To Be Equal #39
October 3, 2018
Constitutional Right to Counsel is Meaningless Under Dismal Current Public Defender System
Marc H. Morial
President and CEO
National Urban League
“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled 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 … 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.” – U.S. Supreme Court Justice Hugo Black
It’s familiar to anyone who’s ever watched a cops-and-robbers drama on television or in the movies: You have the right to an attorney. If you cannot afford an attorney, one will be provided for you at public expense.
It’s enshrined in the Sixth Amendment to the U.S. Constitution: “In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.”
Despite this constitutional mandate, poor defendants who could not afford lawyers to represent them were not guaranteed representation at public expense until 1963, thanks to a defendant named Clarence Earl Gideon. Convicted of burglary after having been forced to act as his own lawyer, Gideon studied the law in prison and appealed to the Supreme Court. The landmark decision resulting from his case, Gideon v. Wainright, required states to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys.
In the 230 years since the ratification of the constitution, and more than a half-century since Gideon v. Wainright, the United States has failed miserably in its duty to guarantee equal justice to rich and poor alike. The public defender system is broken, leaving thousands of poor detainees stranded in local jails – unable to raise enough money under discriminatory cash bail policies – waiting months or even years for a desperately overworked lawyer to be assigned to his or her case. The system forces innocent men and women to plead guilty, just to get out of jail and return to their families and their jobs.
In Missouri, which ranks near the bottom for public spending on defending the poor, the desperate head of the state public defender office appointed Governor Jay Nixon to represent an indigent defendant. Nixon had vetoed legislation to cap caseloads for Missouri’s public defenders, who average 240 cases each per year.
Nixon fought the assignment and won but the point had been made. According to the National Association for Public Defense, public defenders are handling three to five times as many cases as they can reasonably handle competently. The American Bar Association has been referring to public defender workloads as a crisis for more than 30 year.
New York State has taken steps to reform its public defender system. A new law authorizes the state’s Office of Indigent Legal Services to establish and uphold standards that address the presence of counsel at a criminal defendant’s first court appearance; reasonable limits on the defenders’ caseloads; proper training, supervision, and support staff for attorneys; and access to resources needed to mount an effective defense. While the legislation leaves counties responsible for funding public defenders, the state will reimburse cities and counties for the cost of complying with the new standards.
Funding to defend the poor is an easy target for cash-strapped local governments, but in the process of budget-cutting, we diminish our integrity as a nation committed to justice. Constitutional guarantees are meaningless if we are unwilling to base our public policy on our highest ideals.
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39TBE 10/3/18 ▪ 80 Pine Street ▪ New York, NY 10005 ▪ (212) 558-5300
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