Right to Counsel
Decades after the United States Supreme Court ruling in Gideon v. Wainwright and other landmark Supreme Court decisions, which recognized the right to lawyers for those who cannot afford them, disturbing events demonstrated that states and localities were not providing competent criminal defense counsel, despite the constitutional requirement that they do so. In response to this evidence, the Constitution Project, in association with the National Legal Aid and Defender Association (NLADA), established the National Right to Counsel Committee.
Ours is a country that values the rule of law. Yet, despite the fact that funding for indigent defense has increased since the 1963 Gideon decision, there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in light of the current economic difficulties that confront the nation. In much of the country, insufficient funding has resulted in unacceptable levels of training, salaries, supervision, and staffing of public defender programs. Everyday, the caseloads that defenders are asked to carry force them to violate their oaths as members of the Bar and their duties to clients as set forth in rules of professional conduct. In addition, private lawyers assigned to cases for fees receive compensation that is not even enough to cover their overhead and that discourages their participation in systems that assign counsel when public defenders are not available. Equally disturbing, in most places across the country there is no oversight at all of the representation that these lawyers provide. Unfortunately, the quality of work suffers as a result of this lack of oversight.
In addition, defendants throughout the country, especially in the lower criminal courts, are still convicted and imprisoned each year without any legal representation at all, or are “represented” by lawyers who have hundreds of other cases (thus violating Bar guidelines), and lack the requisite expertise and sufficient support staff, including persons who can investigate their clients’ cases. Sometimes people who cannot afford an attorney sit in jail for weeks or months before being assigned an attorney; others do not meet or speak with their lawyers until the day of a court appearance. Too often the representation is perfunctory and so deficient as not to amount to representation at all.
There also are structural problems in the delivery of indigent defense services, including a lack of independence for defenders and the management of their responsibilities. And there are policies respecting criminal prosecutions and rules of criminal procedure that exacerbate the difficulty of providing effective defense services.
The Right to Counsel Committee is addressing all of these problems, and more. Its upcoming report will break new ground in setting out a road map for those seeking to improve their indigent defense systems. Besides a comprehensive discussion of the tactics that have been successful in achieving improvements, the report will contain a number of urgently-required recommendations, addressed to both the federal government and states and localities, for achieving reform.
