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March 11, 2013

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt load while there are, apparently, not enough viable jobs in the marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even while there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal-eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would likely not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers (which the private legal marketplace now does not want). 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at PrawfsBlawg (where I will be guest blogging a bit the next few weeks).

March 11, 2013 at 12:04 PM | Permalink


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Call me ignorant, but (1) why should an arraignment with a guilty or Nolo plea last longer;
(2) could not 70% have pleaded "guilty" or "nc" because they were indeed guilty/nc?

Posted by: Adamakis | Mar 11, 2013 12:59:14 PM

I am banned from PrawfsBlawg by the hypocrite owner. He seeks the destruction of the American family. In the meantime, he has the most traditional and religious family for himself.

He also needs a lesson in legal writing. Legal writing is to persuade. One cannot be persuaded if one cannot understand a single word the person has said.

I may go back there. See what happens. Prof. Berman is not a hypocrite. And he keeps his writing at the proper 8th grade level for the public.

Posted by: Supremacy Claus | Mar 11, 2013 3:17:29 PM

Back to Gideon, the myths, the causes, the real aims, which is lawyer employment, jobs, dinero.

Gideon was caught with $23 in quarters outside a bar where someone had broken into a cigarette machine. He went to a phone booth outside and ordered a cab, for his getaway. No running for this entitled career criminal.

He put on an excellent defense on his own. It is proven that pro se defendants in criminal trial outperform sad sack public defenders in the rate of favorable verdicts. Prosecutors take it easy to avoid bullying. Judges help them with points of law. So it better to not have representation in terms of the rates of outcomes.

His material is enshrined in Constitution Hall, like the corpse of a saint in a church.

The Court leaps on this weak case as a pretext to explode lawyer employment. They make their ruling. 2000 vicious predators must be immediately released in Florida. But not Gideon. He waits for trial longer than the likely sentence, in jail. He refuses the ACLU do gooder, and demands the top local criminal defense attorney. It is that wesel that gets him off the second time, despite his obvious guilt.

So what does Gideon do with his undeserved freedom? He gets drunk and repeatedly beats the wife (for you feminists).

Great lawyer triumph, no? Historic achievement.

Posted by: Supremacy Claus | Mar 11, 2013 3:38:42 PM

The above review of Gideon was cross posted on PrawfsBlawg. It was pulled within minutes.

None of the above is original. It is from here, a neutral source.


Trutv was once Court TV.

Our mutual friend, Dan Markel, cannot face a few facts from a neutral source. He is the typical, supercilious, Harvard Law indoctrinated hypocrite. He has never consented to debate, despite having twice my IQ and 10 times the legal knowledge. He is an intellectual, afraid of my well preserved high school education, erased in all lawyers by the cult indoctrination of law school. He will not face the barrage of horrid facts about the lawless origins of the Common Law in the anti-Semitic Inquisition, nor the horrid facts of its across the board total failure save in one area, rent seeking.

I am no more angry nor disappointed at him than at Virginia, who at least admitted, she could not manage an intense death penalty discussion with Bill, despite my offer to fund it. I accept that as honesty. Dan still believes in his moral and intellectual success. He is in total denial about the lawyer profession. A big baby. And I have a lot of patience.

Posted by: Supremacy Claus | Mar 11, 2013 11:15:20 PM

Justice Abe Fortas argued that pro se defendants would get slaughtered in court, facing a trained lawyer.

Again, the facts are otherwise. Not mentally ill. Do as well or better than "trained" lawyers.


Posted by: Supremacy Claus | Mar 11, 2013 11:21:10 PM

Supremacy Claus | Mar 11, 2013 11:15:20 PM --

I still appreciate your offer, and am still willing to debate. I might add that, despite a number of invitations I have issued, the only person on this blog to have actually debated me was Doug Berman at Ohio State, and that was arranged independently.

Kent and I had an on-line debate with two distinguished abolitioninsts, Natasha Minsker of the Northern California ACLU (who led the Prop 34 campaign), and Prof. David Dow of the University of Houston. That debate is available here, http://www.fed-soc.org/debates/page-debate/death-penalty

Posted by: Bill Otis | Mar 12, 2013 10:34:35 AM

This may be the 50th anniversary of Gideon but not of the "right to counsel," at least in Texas. According to a newly published history (p. 65), the Texas Supreme Court in Calvin v. State ruled that "the state had a duty to provide counsel for blacks who could not afford their own - a progressive notion that would not be enshrined in federal jurisprudence until more than a century later."

SC, you're still a nutjob. Name calling is not argument and the arguments you do make are absurdist rants. The only reason you comment here is because, if you had your own blog, no one would ever read it so you hope to hijack Doug's audience. Why he lets you I'll never understand, but no one should ever blame a blogger for banning your comments. That just shows good common sense.

Posted by: Gritsforbreakfast | Mar 12, 2013 11:27:48 AM

Getting adequate funding for defense services has always been the challenge. It is just not politically popular.

The lawyer peace corps/teach for america model is superficially appealing, but I would have some worries. I know that many school districts have complained that teach for america teachers are a mixed bag because they lack a real connection to the school/community (knowing they are out of there in two years or so) and because, no matter how bright they are, they don't really know what they are doing, since most are first-time teachers. That doesn't sound like a great recipe for indigent defenders: brand-new, know-nothing lawyers who are in place for a relatively short, fixed period, after which they probably hope to transition into some other, now-criminal field. Being a good teacher is hard and takes time to master -- no matter how smart and well-educated you are. The same for being a criminal lawyer. (Just like being any other kind of lawyer.) It might be marginally better than the mess we have now in many places, but it doesn't seem to me that it would likely be *so* much better that it would be worth the investment. (Of course, by "better," I am talking about better for the clients and their constitutionally guaranteed right to counsel. I suppose it would be better for all of the poor schleps without jobs. But that doesn't seem to me that it should be what is driving such a policy.)

Posted by: anon | Mar 12, 2013 11:35:46 AM

Grits: Dan removed the Abe Fortas comment. That comment just linked to an empirical study that rebutted a central assumption of the Gideon decision. That study would be the most important for the public to know, including judges and lawyers.

That study threatens funding for public defenders. It threatens the rent, which is tax money taken at the point of a gun, with no value returned to the taxpayer. Rent seeking is a synonym for armed robbery by intelligent educated people.

Posted by: Supremacy Claus | Mar 12, 2013 11:50:00 AM

Grits, I am curious if you knew the story of Gideon before I retold it from a neutral, pro-lawyer source, CourtTV. If you had attended law school, you would understand and appreciate more. In the old days, my impudence would get me to the stake, or thrashed by night riders, all agents of the lawyer profession. The lawyers can see the love, however.

I am curious if the lawyers here are troubled by this Gideon decision, generating a million lawyer jobs, and the fact that a guilty defendant went free, thanks to a very slick defense lawyer.

I already know the standard answer, the Court was defending the constitution, not a guilty criminal. But is any lawyer troubled by this Constitution Hall enshrined case. Other landmark cases have a small summary display. This case has a huge display case to itself, with overhead lighting as if God were looking down. It has to be the jobs.

Posted by: Supremacy Claus | Mar 12, 2013 12:05:26 PM

Anon: It takes about 10,000 hours to get good. If one works 80 hours a week for 50 weeks a year, that means competence in 2.5 years. If lawyers agreed to a 5 year contract, that would be fair to both sides.

Posted by: Supremacy Claus | Mar 12, 2013 12:11:47 PM

I was pro se and guilty.

Problem_1 was that my conduct did not become a crime until ten months later .

Problem_2 was rogue judge #1 , a former state senator who has served on the judiciary committee , the liquor control committee and had won a primary for Supreme Court justice .

Problem_3 was rogue judge #2 , took my bill of exceptions from our county and kept it form the court of appeals .

Judge #1 died on Bastille Day 1963 , three days after the effective date of the law which made my then lawful conduct now illegal .

Judge #2 was even worse when he moved from then Ashland County Municipal Court to the Court of Common Pleas .

Thank God/G*d for the 5th District !

Lawyers are needed to help keep those few rogue judges in check , since there is no “open season” on them .

Posted by: Anon. #2.71828 | Mar 12, 2013 9:31:26 PM

Grits: I have posted several times on your busy blog. No ban so far. Nasty personal remarks because you have a bad temper, but no ban. It is ironic. The system is insane, and from the Twilight Zone. It is filled with fictitious doctrines, faith based delusions, and is in utter failure. But it is any loving criticism that is labeled as mental illness.

Do you understand why the system remains crazy, and its critics are labeled as insane? Money. End crime, end make work government jobs. As a loyal member of the Democratic Party, you have zero tolerance for any proposal that goes in the direction of lowering government make work jobs. Had you heard of the rent seeking theory before I brought it up? It explains most absurdities in the criminal law.

Posted by: Supremacy Claus | Mar 14, 2013 10:25:23 AM

SC, if you ever commented on Grits you either didn't use your handle and controlled yourself or else I just didn't see them. I don't actually read every comment posted there.

Also, I'm hardly a loyal member of the Democratic party, by a longshot. In fact, when I was a political consultant for 14 years I worked for candidates in both parties (as well as nonpartisan races) and to this day routinely split tickets. As always, you just make stuff up. Nutjob.

Posted by: Gritsforbreakfast | Mar 14, 2013 10:01:23 PM

Grits: You did have a personal tragedy and received my sincerest sympathy, one time. Believe it or not, I shed a tear for your family and for you. I do not have any personal grudge against you. I just disagree with you.

Many other times, it was more like this.


So even you do not believe in censorship and banning as Dan Markel does. I just do not respect him for this intellectual cowardice.

Posted by: Supremacy Claus | Mar 15, 2013 1:20:36 PM

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