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March 23, 2021

"The Gender of Gideon"

The title of this post is the title of this notable new paper authored by Jessica Steinberg and Kathryn Sabbeth now available via SSRN. Here is its abstract:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.  In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches.  The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests.  As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel.  Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued.  In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel.  Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases — family law, eviction, and debt collection — all disproportionately affect Black women.  As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy.  Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis.  First, their individual rights are routinely trampled.  Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law.  Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives.  Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination.  Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible.  This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

March 23, 2021 at 01:28 PM | Permalink

Comments

Having previously worked as a Public Defender in the state of Florida for several years and having been assigned 100s of cases I can say in my experience that women as well as men were represented. Both genders were represented by their assigned counsel zealously and competently. The Public Defender's office used strict financial guidelines to determine if a defendant qualified for the Public Defender services. There was never a time that women of any color, race or religion were denied services based on their gender and to suggest otherwise is absolutely ridiculous.

Your article is confusing the right to counsel in criminal cases for indigent defendants who's liberty and freedom is at stake with a desire for the same right to free counsel in civil proceedings. Unfortunately in noncriminal matters the courts and/or legislative bodies have not sought nor implemented the same right for indigent defendants where civil penalties may be levied. In addition, having also worked as a State Attorney for the Department of Children and Families in the State of Florida and as a Child Abuse Investigator for the sate of Texas I have had much involvement in court proceedings concerning the termination of parental rights. Again your argument is not well informed. First of all the focus of the law in termination proceedings are the "Best Interest of the Child" not the parent. The courts usually assign attorneys and social workers to act as a Guardian Ad Litem for each child. There are home studies, interviews and investigations done by Child Protective Service Investigators, police, social workers and other interested parties. The rights of the parents are protected but not the focus and certainly not the determining factor because the "Best Interest of the Child" is what matters not the best interests of the parent.

With all do respect there is no reasonable comparison between the right to public assistance of counsel in criminal cases and the civil cases you mentioned. A defendant facing prison, incarceration in a barred and cement jail cell, with an open toilet, sharing a shower with several others, eating three gross meals a day, allowed to go out into the fresh air for maybe a total of seven hours a week and fearing for their very lives every waken minute while their spouses, children and parents grow older have birthdays, get married, divorce, graduate and move on for possibly years on end is in no way shape or form equal to being evicted from an apartment for not paying your rent and having to find another place to live. There is no logical, legal or social comparison between the female/male criminal indigent defendant and the civil female defendants' (white, Asian, Black and Latin males face eviction, termination of parental rights as well)right to free representation by an attorney from the initiation of court proceedings, to trial and then throughout the appellate process.

Your use of Gideon to express a desire for a right to free counsel for women in civil proceedings is misplaced, I would go with more with an economic, social and equity argument.

Respectfully,

CPT Adam Jonasz
US Army (Ret)

Posted by: Adam Jonasz | Apr 1, 2021 10:47:27 AM

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