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March 19, 2013

Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

Gideon trumptetThe provocative question in the title of this post is the result of my latest personal ruminations over how to "celebrate" the 50th anniversary of the Supreme Court's landmark ruling in Gideon v. Wainwright this month.   Much of the discussion I have seen looks back at the Gideon case, reviews the ruling's import, and then laments that funding for lawyers for poor defendants remains inadequate. 

But this provocative New York Times op-ed by Paul Butler, headlined "Gideon’s Muted Trumpet," provides some broader context for how modern criminal justice has evolved over the last half century after Gideon becomes the law of the land. Here are excerpts, with a few lines emphasized by me to help explain the provocative question in the title of this post:

Fify years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off.

Don’t blame public defenders, who are usually overwhelmed. The problem lies with power-drunk prosecutors — I know, because I used to be one — and “tough on crime” lawmakers, who have enacted some of the world’s harshest sentencing laws.  They mean well, but have created a system that makes a mockery of “equal justice under the law.”  A black man without a high school diploma is more likely to be in prison than to have a job.

A poor person has a much greater chance of being incarcerated now than when Gideon was decided, 50 years ago today.  This is not because of increased criminality — violent crime has plunged from its peak in the early 1990s — but because of prosecutorial policies that essentially target the poor and relegate their lawyers to negotiating guilty pleas, rather than mounting a defense.

After Gideon, things got better for poor defendants in the short term.  Thousands who had not had lawyers at trial were released from jail.  Many states and localities created public defenders’ offices.  But political and legal developments soon eroded those achievements.

The so-called war on crime greatly expanded criminal liability.  A prosecutor can almost always find some charge: there are over 4,000 crimes on the federal books alone. Recreational drug use is one of the more popular activities in America, but racial minorities suffer the brunt of drug-related convictions.

In part because of federal grants to states to incarcerate drug offenders, the United States experienced the largest increase in incarceration in the history of the free world.  Our population is less than 5 percent of the world’s but we have nearly 25 percent of its prisoners.  When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are....

Today over 90 percent of accused people plead guilty.  It’s rational, because the costs of being wrong are just too high.  As a young prosecutor, I enjoyed having all this power. I worked on a case against a property clerk who was stealing supplies from a government office.  We set up a sting, in which an undercover agent acted as a buyer of stolen merchandise.  Each time the clerk committed to selling more stolen goods, his potential sentence increased by five years.  We got the guilty plea we wanted.

The Supreme Court has famously stated that the prosecutor’s interest “is not that it shall win a case, but that justice shall be done.”  In our adversarial system, however, those are just words on paper.  Gideon, meanwhile, is an underfunded mandate.  Some public defenders are forced to juggle over 2,000 cases per year, as the journalist Karen Houppert found in a new book, “Chasing Gideon.”...

The Supreme Court recently extended Gideon’s reach to the plea bargaining process, a potentially encouraging development.  But, as the federal judge Jed S. Rakoff has written, the main problem is not defense lawyers’ “ineffectiveness” but prosecutors’ “overconfidence.”

Poor people lose, most of the time, in our criminal justice system not just because indigent defense is inadequately financed, although it is, and not because public defenders are ineffective, although some are.  They lose because prosecutors and lawmakers treat them like losers.  That is the real crisis of American indigent defense.

The points I have highlighted above provide the foundation for my rumination that without the Gideon ruling in 1963, many of the "political and legal developments" stressed by Butler might not have happened or even have been possible.  The decade after Gideon is when the modern "drug war" got started, and it is still going pretty strong four decades later; around the same time, as the commitment to rehabilitation in sentencing was assailed, lawmakers and prosecutors embraced more rigid and severe sentencing structures; and these forces were critical components in the multi-decade march toward modern mass incarceration.  I must wonder if these policial and legal development would have taken place the same way, or at all, if lawmakers and prosecutors did not feel confident that poor defendants' rights would always be safeguarded because they now had a constitutional right to a lawyer.

Readers familiar with the late great Bill Stuntz's ground-breaking scholarship will rightly think I am channelling some of his insights about the ways in which landmark Warren Court criminal procedure rulings provided a critical precursor to modern criminal justice problems.  Critically, I absolutely do not mean to assert or suggest — nor do I read Stuntz's work to assert or suggest — that Gideon and other landmark Warren Court rulings directly caused a host of modern criminal justice problems.  But I do not think it is mere coincidence that the American criminal justice landscape started to change dramatically, and often for the worse, not too long after the Supreme Court responded to Clarence Gideon's trumpet call for the constitutional right of all criminal defendants to get a lawyer's assistance.

That all said, I absolutely do not think Gideon was wrongly decided, nor am I suggesting that modern complaints about indigent defense being inadequately financed are overstated.  Rather, I am just eager in this forum to encourage everyone to "celebrate" Gideon by considering broadly what modern American criminal justice might look like if Gideon never became a name in our constitutional lexicon.

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Sorry, can't help you.
Here in Italy there is not even the idea of someone in court without a lawyer

Posted by: claudio giusti | Mar 19, 2013 1:57:42 PM

" I must wonder if these policial and legal development would have taken place the same way, or at all, if lawmakers and prosecutors did not feel confident that poor defendants' rights would always be safeguarded because they now had a constitutional right to a lawyer."

This seems to suggest that Gideon opened the floodgates because lawmakers and prosecutors had been holding back out of solicitude for the rights of unrepresented indigent defendants. That's...crazy.

Stuntz would just say that by expanding defendants' rights (and letting criminals get off Scot-free based on procedural "technicalities), the Warren Court was giving law & order entrepreneurs a further justification for more and harsher punishments. That much is probably true, though it's hard to see how it could have been otherwise.

Posted by: Michael Drake | Mar 19, 2013 3:02:40 PM

"Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?"

It ceaselessly amazes me how the legal profession thinks that what it does -- in representing criminals or anything else -- accounts for how the world works. We lawyers just aren't as important as we think we are.

The war on drugs came about because drug usage took off starting at about the time of Gideon (but not because of Gideon). After ten or so years of this, and increased knowledge about how dangerous drugs are, the country got more serious about trying to do something about it.

The sentencing severity revolution came about because the country was justifiably fed up, and concerned, with the clueless we-know-how-to-make-people-better rehab mantra of the sixties, saw that said mantra did nothing to stem the crime explosion. They thought, relatedly and correctly, that runaway judicial free-lancing needed to be cabined. This thought was so widespread that the SRA was co-sponsored by Strom Thurmond and Ted Kennedy.

"Mass incarceration" (as the increase in imprisonment is pejoratively called) came about because it dawned on the electorate, and even to an extent on judges, that when crooks are in jail, they're not ransaking your house while you're on vacation or blowing your head off if you're the clerk at the convenience store at 4 a.m.

The country continued with increased incarceration because -- guess what -- it works. Many commenters just slough off the massive crime decrease over the last generation, but it's a wonderful development no matter how much it gets dismissed, and incarceration significantly (though of course not solely) contributed to it.

These are not insoluble mysteries, and have precious little to do with Gideon.

P.S. Paul Butler is an irresistably likeable man, as I found out at our debate in DC on drug legalization, see https://www.facebook.com/events/148232648554490/

Posted by: Bill Otis | Mar 19, 2013 4:35:54 PM

what modern American criminal justice might look like if Gideon never became a name in our constitutional lexicon."
My late father was lawyer who did criminal work as a prosecutor and defense attorney before Gideon. After Gideon he was judge. He told me that before Gideon somehow, someway, family members of the poor usually came up with the money to pay for the defense of their relatives charged with felonies. More significantly, in my mind, he explained how, after Gideon, appointed counsel aggressively pushed speedy trial and reasonable bail issues. Where, before Gideon, the accused would sit in jail and many times be released because the potential penalty had actually been served. In murder cases, defendants would sit for a couple of years without counsel until their case was called.

Posted by: ? | Mar 19, 2013 6:03:46 PM

His book “Let’s Get Free: A Hip-Hop Theory of Justice” was interesting.

I don't know really how the ruling assisted this effort. The case was a tad ironic, since the young state advocate was overwhelmed there, even getting little support from other states, many states in fact on record supporting a right to a paid lawyer. As we know, many still doubt that poor defendants have their rights adequately protected though the ruling and other cases helped considerably.

The "drug war" had roots in the late 19th Century, though the 'war on alcohol' might go back further. The 1960s was a new wave, affected by many social developments. As to so-called technicalities, Lawrence Friedman's interesting work on the history of American law notes how such things occurred long before the Warren Court. I don't think the the law & order crowd needed an 'excuse' as such. These things come in waves, as noted, and there was some pushback. Scholars can cite ebbs and flows in state law as well.

Posted by: Joe | Mar 19, 2013 6:09:16 PM

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