The Right to Counsel

In 1961 Clarence Earl Gideon was a poor man living in Florida and facing felony charges for breaking and entering a local pool hall. Because he could not afford to hire a lawyer, he asked the court to provide one. The judge assigned to his case denied his request. Gideon went on to defend himself at trial. He lost and was sentenced to five years in state prison.

Although the Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence,” it took more than 170 years after its ratification before the right to counsel could be exercised by people too poor to pay for a lawyer.

From prison, Gideon, again without the assistance of a lawyer, wrote a five-page petition to the U.S. Supreme Court in which he argued that because he was too poor to hire a lawyer he could not exercise his constitutional right to counsel and due process. The Court accepted his case and, in 1963, ruled unanimously in Gideon v. Wainwright that under the due process requirements of the 14th Amendment, state courts must provide an attorney at public expense to defendants who are too poor to pay for counsel and are facing felony charges. The ruling granted Gideon a new trial. This time, he had the assistance of counsel and was acquitted.

In the 50 years since Gideon, the Supreme Court has upheld and greatly expanded the right to counsel to include indigent children in juvenile delinquency proceedings; indigent defendants facing misdemeanor charges; and indigent adults at critical stages in criminal case processing or post-conviction proceedings. However, despite Gideon and its progeny, the reality on the ground remains troubled. Across the country, there are jurisdictions where a poor person can be arrested and held in jail for days or even weeks without seeing a lawyer, where public defenders are forced to carry caseloads well beyond the American Bar Association professional standards, and where the budgets of prosecutor offices are several times greater than the budgets available to fund the public defense system.

American Bar Association recommends no more than 150 cases per public defender

which involves both adequate funding and independence from funding sources, reasonable caseloads (on par with prosecutors), and access to experts, investigators, transcripts, and other resources to assist in a person’s defense. Taken together, these requirements amount to what The Constitution Projectand the National Legal Aid & Defender Association’s National Right to Counsel Committee calls “a significant high-cost, unfunded mandate imposed upon state and/or local governments.” Not surprisingly, most state and local governments have struggled and often fail to fulfill Gideon’s promise—even though there are countless unsung public defenders who strive every day on behalf of their clients, despite crushing caseloads and insufficient resources.

A July 2015 lawsuit filed by the American Civil Liberties Union against the County of Fresno and the State of California provides a stark illustration of the wide gap between Gideon’s promise and reality. Attorneys for the plaintiffs maintain that due to systemic problems in the county’sunderfunded public defense system, Peter Yepez, a plaintiff, did not see a public defender until he had spent almost a month in jail and was represented by nine public defenders between his arraignment and sentencing, some of whom told him they did not have time to work on his case and advised him to plead guilty despite strong evidence that he was innocent.

There is a new model of providing public defense that injects hope into a system that otherwise falls short of Gideon’s mandate. Holistic defense, an approach to representing defendants in criminal proceedings that looks at each person as more than just their criminal case, is changing the way public defenders protect their clients’ rights and represent them in court. Using a holistic defense model, lawyers work with other advocates—social workers, civil lawyers, and others—to address the circumstances and reasons people are involved in the justice system and the devastating consequences of court involvement. In Texas, the Harris County Public Defender office, created in 2010 and featured in the “Defense Mechanisms”story, is based on this promising model. Although the effectiveness of this new model of public defense is not yet fully known, research is under way that aims to understand whether and how it secures for indigent defendants adequate legal representation and/or addresses the underlying circumstances leading to involvement in the justice system.