Forum Post: Fifty years after Gideon, lawyers still struggle to provide counsel to the indigent

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

There were more specifics, of course, but the report’s bottom line was that “40 years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.”

Fast-forward to 2009, and a report of the National Right to Counsel Committee and the Constitution Project found little progress. Despite an overall increase in funding, “inadequate financial support continues to be the single greatest obstacle to delivering ‘competent’ and ‘diligent’ defense representation,” said the report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (PDF).

The most visible sign of such inadequate funding is public defenders with “astonishingly large caseloads,” sometimes more than 100 clients per lawyer at a time. Such lawyers cannot interview their clients properly, file the appropriate motions, investigate their cases, responsibly negotiate with prosecutors, or perform other tasks.

Former Vice President Mondale, who was an honorary co-chair of the project, lamented in a 2009 op-ed essay in the Washington Post that if Clarence Gideon were hauled into court in Florida that year, he might well be denied a public defender because of the state’s limits on assets to qualify as indigent. “Sadly, Gideon’s chances of getting counsel would be worse” in other states, Mondale wrote. Such barriers “effectively work to deny counsel to people who truly cannot afford to hire representation.”

The Justice Denied report had a host of recommendations, including urging states to have a single statewide agency overseeing all aspects of indigent defense, the establishment of workload limits for defense attorneys (a position echoed in multiple reports and principles put forth by the ABA), and, where necessary, the filing of “systemic litigation” over excessive caseloads.

...In June 2011 the Supreme Court issued its latest decision in the Gideon line, holding in Turner v. Rogers that the 14th Amendment’s due process clause does not automatically require a state to provide counsel to an indigent person facing a civil contempt proceeding, even if the person faces incarceration.

The decision was largely a disappointment to the “civil Gideon” movement, the community of advocates who promote the appointment of counsel to indigent litigants in adversarial civil proceedings, particularly when such things as shelter, child custody, health or safety are at stake.

The movement took heart, though, that the high court required increased procedural safeguards in certain such cases. (The 5-4 decision held that a South Carolina man jailed for 12 months for nonpayment of child support should at least have been given alternative procedures that would have notified him that his ability to pay the overdue child support was the critical question in his contempt-of-court case.)

In January, just two months before the 50th anniversary of Gideon, the justices took up their latest criminal case involving indigent defense. The case was Boyer v. Louisiana, a factually messy dispute involving a capital defendant who faced a seven-year delay in being brought to trial, with five of those years awaiting the appointment of qualified state-appointed counsel.

The defendant, Jonathan Edward Boyer, contends in his court papers that the lengthy delay was caused by a “systemic breakdown in the funding of indigent defense” and violated his Sixth Amendment right to a speedy trial. Louisiana contends that the delay was not attributable to the state, and that Boyer always had effective representation. (Louisiana requires indigent capital defendants to receive two specially qualified lawyers.)

The justices wrestled during the Jan. 14 oral arguments with some of the thorny issues related to indigent defense. “Should the state be responsible when the funding problem is at a local level?” Justice Anthony M. Kennedy asked during the argument. And Justice Sonia Sotomayor observed, “In the end, states are always strapped,” but they make choices on how they allocate their criminal justice budgets, and even when they are broke they find ways to “pay the prosecutor.”into place.”

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