March 18 marks the 56th anniversary of the landmark Gideon v. Wainwright (1963) Supreme Court decision that granted poor criminal defendants the right to have a lawyer represent them in court in state criminal cases even if they could not afford one. It overturned a prior decision that allowed indigent defendants counsel only in special circumstances (i.e., those charged with serious criminal offenses such as murder in state, not federal, trials).
This landmark decision bolstered the public defender profession, which had been percolating since the early 20th century and forced states to assume the burden of providing legal representation to poor defendants. Instead of a capricious system that varied from place to place, theoretically the court was insisting upon all impoverished defendants receiving quality counsel.
The justices recognized that the right to counsel is critical toward the principle of equal justice under the law, an important legal concept embedded in the 14th Amendment and even engraved on the Supreme Court building itself. But do poor defendants actually receive equal justice? While the courts have mandated representation for all, the dictate for equality before the law remains a lofty ideal, not a reality. As we rethink our criminal justice system, that must change if we wish to create a fairer, more just society.
In 1893, Clara Shortridge Foltz — the first woman in California to pass the state’s bar exam — proposed a model public defender bill (the Foltz Public Defender Bill) that was ultimately passed in 30 states and remains the blueprint for the modern public defender system. The Foltz bill called for a system of salaried defense attorneys devoting much or all of their time to representing poor individuals accused of crimes, who could not afford to pay for their own attorney.
The nation’s first public defender office was established in Los Angeles County in 1914; seven years later California became the first state to pass a statewide public defender bill. Yet perhaps as an indicator that the profession was gaining steam, in the 1930s there was a backlash by members of the private bar. Among the complaints were that the sheer number of cases could balloon to the point of the public defender becoming exhausted by the vast workload and losing enthusiasm for his or her work.
This backlash exposed the uneven nature of the availability of quality counsel at this time. The roots of the Gideon case, in fact, trace to this moment and the infamous Scottsboro case in 1932, where both poverty and racism played a role in undermining the justice system. In Powell v. Alabama (1932), nine black teens ranging in age from 13 to 19 years old, often referred to as the Scottsboro Boys, were accused of raping two young white women. (One of those women, Ruby Bates, later recanted her initial testimony and testified for the defense in a subsequent trial.) Represented by unqualified counsel, the young men — most of whom were illiterate — were convicted by an all-white jury, and eight were sentenced to death.
Ultimately, the Supreme Court weighed in, determining the trials as conducted violated the Due Process Clause of the 14th Amendment, thereby overturning the men’s convictions. The Scottsboro case helped spur on the civil rights movement and has remained a symbol of racial injustice in the justice system.
But the publicity didn’t remedy the uneven nature of the public defender system. By 1951 there were 28 public defender offices nationwide. The largest office, in Los Angeles, employed 15 lawyers. But many other places had no such services. How they were used and who was responsible for hiring public defenders also varied by state, as well as the types of cases they handled.
In 1963, Clarence Earl Gideon again raised the issue of defense for the poor. Educationally, he had only gone as far as eighth grade before running away from home. After that, he drifted around. In 1961, Gideon broke into a Florida pool hall and stole money from the facility’s vending machines. He was no stranger to arrest and incarceration by that point in his life.
At trial, Gideon requested that the court appoint him a lawyer since he could not afford one on his own. He was told by the Florida judge that the state only provided for counsel for poor defendants charged in capital (i.e., death penalty) cases, such as those involving murder charges. He filed a writ of habeas corpus with the Florida state Supreme Court challenging his conviction on the grounds that his constitutional rights were violated because he was denied counsel. The state court denied the petition, so Gideon subsequently submitted a petition to the U.S. Supreme Court, which agreed to hear his case.
The Gideon decision came during a period between 1953 and 1969 when the court, under Chief Justice Earl Warren, assertively expanded individuals’ rights and attempted to make the criminal justice system fairer. During this period came such landmark decisions as Brown v. Board of Education of Topeka (1954), and a number of cases relevant to criminal justice, most famously Miranda v. Arizona (1966) (i.e., “you have the right to remain silent …”). As noted in a blog post by Alex McBride, “in all of these cases, the Supreme Court recognized that, in a society of profoundly unequal resources … and ignorance of complex law, justice can only prevail if the state provides an indigent defendant with an attorney.”
The Gideon decision provided momentum to the public defender profession. After the court’s decision, President Lyndon Johnson put the weight of the federal government behind the public defender system with the 1964 Criminal Justice Act that established a “comprehensive system” to appoint and reimburse attorneys for poor defendants in federal cases. The Defender Services program has grown ever since. As noted on the U.S. Courts website, “In 1973, 15 of the nation’s 94 federal judicial districts were served by full-time defender offices. By FY 2013, that had grown to 91 districts.” Defendants in hundreds of thousands of cases now receive representation from tens of thousands of attorneys.
Yet while all defendants are guaranteed a right to counsel, public defenders tend to have too-high caseloads and not enough time for each client. A recent New York Times article chronicled how one such public defender has nearly 200 clients and not enough time to devote to their individual cases. His workload is not unusual among public defenders or anything new, something made clear both in the documentary film “Gideon’s Army,” a 1980 movie based on the Gideon case, and by the fears expressed by the private bar in the 1930s about workload.
Issuing the opinion for the court in Gideon, Justice Hugo L. Black wrote that “there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses.” What kind of “best” defense are poor defendants getting when their counsel is excessively overburdened and can only spend minutes with each client? In 2017, a Louisiana judge observed the state was “failing miserably at upholding its obligations under Gideon.”
Perhaps the anniversary of Gideon is a good moment to consider how the most vulnerable individuals moving through the justice system can be better served, in concert with the Gideon decision, the Sixth and 14th amendments, and with the public good, as we realize far too many Americans are spending too much time incarcerated for their crimes.