2013 marks the 50th anniversary of Gideon v. Wainwright, the landmark Supreme Court decision that established that under the Constitution, states are required to provide a lawyer to criminally charged defendants who cannot otherwise afford one. The Gideon ruling is rightfully celebrated as an important legal victory, but I am not alone when I suggest we still have promises to keep, 50 years later.
Despite substantial changes to our criminal justice system since Gideon, state and federal governments have still not committed the funding necessary for public defenders to keep pace with the rising flood of criminal cases. The much-touted “War on Crime” of the 1980s resulted in record-breaking arrests that were not met with a system realistically prepared to offer justice to all. Bankrolling the War on Crime was easy enough but when time came to fund indigent defense, our leaders got squeamish and shortsighted and failed to realize a basic fact: the cost of indigent defense is part of the cost of criminal justice.
According to the Justice Policy Institute, over the last 25 years spending on public defense has remained far below other criminal justice expenditures. For every dollar spent on public defense, we spend nearly $14 on corrections and $20 on police protection. And the results are getting pretty obvious.
Today, we live in an era of mass incarceration, caused in part by this broken promise. 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 combined with the routine denial of effective legal representation for poor defendants, there are currently 2.3 million people behind bars—nearly half for nonviolent crimes. THAT is expensive at over $30,000 per inmate, per year…yet we also spend less on public defense as a percentage per capita than every single European nation. Coincidence? I think not.
According to the American Bar Association, 70 to 90 percent of criminal defendants qualify for publicly funded attorneys today; that is a far cry from the 40 percent of Gideon days. Caseloads are exorbitant, with today’s public defenders carrying upwards of 300 cases at a time. Issues are more complex, needing investigation, scientific testing and more extensive discovery. Juries are made up of the “CSI” generation now, so they want it all and they want it now with little regard to cost. And finally, public defender positions tend to be underpaid so they attract less experienced lawyers. The result is, in this author’s opinion, the lack of time, training, resources and support these lawyers need to consistently put their best foot forward; to offer justice as promised and to fulfill the promise of Gideon.
One solid and commanding voice in this discussion has been my former law school dean, Former Dean and Professor of Law Norman Lefstein, who has both studied and worked this issue for decades. In his 2011 book, “Securing Reasonable Caseloads: Ethics and Law in Public Defense,” Lefstein notes that we have a moral and ethical duty to draw a line in the sand and “just say no” to compromising the quality of legal representation because of outrageous caseloads.
Gideon’s 50th birthday has set Congress atwitter as well, literally and figuratively, with the introduction of legislation that would require states to use existing federal funds to improve the administration of criminal justice in strategic ways. This would include providing for adequate training, compensation and support for public defenders. The Gideon’s Promise Act of 2013 would hold states accountable for providing effective representation to criminal defendants, because to do less than that risks the very freedom of those we have promised to protect.
Earlier this month, I was fortunate to represent this bar association in a federal district court naturalization hearing held for the first time at Shortridge Magnet School on Law and Public Policy. While these ceremonies are always moving, this one was particularly near and dear to my heart because it was the culmination of nearly a year of planning to create the perfect storm. On that day, in that auditorium, 83 people from more than 40 countries were sworn in as new U.S. citizens by Federal District Court Judge Jane Magnus-Stinson, in full view of a student body comprising young people impatient to work for justice.
It was a beautiful thing and a vivid reminder that America is still the “destination capital of the world” for those looking for opportunity, equality, and freedom. Truth is, all over this country immigrants are willing to renounce any and all allegiance to their birth country to pledge their allegiance to the United States of America; to fight and die in our wars; to pay our taxes; and to peacefully assimilate in this melting pot of society. In short, to live in “One Nation, Under God, Indivisible, with Liberty and Justice for all.” Let’s not forget our promise to them.•