Clarence Earl Gideon, of Florida by way of many state’s penitentiary systems, was a thief. He was a rather poor one too. Gideon, whose name I have adopted and which I shroud myself in on a daily basis, was also a dreamer. And like most dreamers, he was also a fool. A thief, a dreamer and a fool, and in the end, he and his legacy have done us all in.
50 years ago today, Clarence Earl Gideon the man, the thief, was vindicated. Writing for an unanimous Supreme Court, Justice Black opined that
reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.
Obvious in principle, obvious in necessity but hardly obvious in execution. Clarence himself bought into the lofty ideal idealized in his namesake decision, going so far as to put some grandiose on his tombstone:
And yet, somehow, here we are. There is no joyous celebration of the 50th anniversary. There are no pats on the back or accolades, let alone a sense of satisfaction of a job well done.
There is only a moment of attention that has drawn the pleas for help out into the open, as the world, for this instant and only this instant, has muted every other noise to pay perfunctory obeisance at the altar of indigent defense, because it is the right thing to do. So in these few fleeting moments, take note of the near-universal message of “dear God please help us we are drowning”.
In this moment, I am reminded of another favorite quote of mine:
In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.
While the meaning of the phrase “shall enjoy the right” may have been up for debate prior to Gideon v. Wainwright, that decision left little room for its continuation. What the Constitution (and by extension Gideon) did not provide is the will to enforce that right.
That will comes entirely from the people. And the people for about 49 years now, haven’t given a shit.
Oh, don’t get me wrong. The people – you – care very deeply about the criminal justice system. The people – you – have very strong senses of right and wrong. The people – you – have very strong opinions about what should be a crime and how swiftly, quickly and severely that crime should be punished. This hasn’t changed. Just remember Justice Black:
Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.
Law & Order, DAs, cops, FBI agents, rogue cops, the triumph of good over evil are staples of our modern imagination. They are woven into the fabric of our existence and color the lens through which we view the world.
Every person arrested is guilty and those that are not are rare exceptions that don’t alter the perception of the system. We don’t care if the people who get arrested get good defenses; we assume they’re guilty. What we really need to do is pay the people who catch criminals. And prosecute them. And guard them. The guys who defend them? Scumbags. Criminals themselves. Government fatcats.
It’s not so much a funding problem (it is that too) as it is an attitude problem. The funding drought is merely a symptom of the greater issue with indigent defense: no one gives a shit.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
How many reading this today would agree that it continues to be true? Maybe it did when Justice Black wrote it in 1963. But I don’t know. I wasn’t conscious then.
Do these principles still matter in a Honey Boo Boo world? Are we still obsessed with being the best in the world at everything? The most noble? Is that even on the radar?
Imagine, if you will, a world without a public defender. What would this world look like? Do you know that in Connecticut [PDF], we handle over 80% of the criminal cases every year? That means approximately 81, 500 cases last year were handled by public defenders.
Yes, that’s 81, 500. In one year. I think the public defender system in Connecticut employed 214 attorneys in the last fiscal year. Any time you get arrested and face jail time, we represent you. Doesn’t matter if it’s because you shoved your girlfriend in a fit of rage or because you broke into a house and murdered the occupants because they interrupted you while you tried to steal their PS4.
Eighty-one thousand. In one year. And that’s in Connecticut, one of the smallest states.
We’re like your neighborhood mechanic who works on your car for free, whether it’s an oil change or a transmission.
But there are 81, 500 cars and only 214 mechanics. We need more mechanics.
The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.
“Arguing for more money to defend criminals is not the easiest way to win a close election,” said former Vice President Walter Mondale. As Minnesota’s attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states’ responsibilities to poor defendants.
Why is that so? Who is to blame? It is the height of cheek for politicians to say that seeking funding for criminals is an untenable platform when they themselves have made it so. ‘Tough on crime’ was a political policy, not an intrinsic way of life. Politicians have made careers on ruining lives of those arrested and now lament the lack of popular will to fix the broken system.
Or is it our fault for letting them? How many times have you said: “why don’t they just find them guilty already and sentence them?” How many times have you disrespected the Constitution?
And what will happen when it is you, facing a judge, standing next to a public defender with 25 files in his hand? Or your son? Or your grandfather?
Funding indigent defense isn’t funding criminals. Funding indigent defense isn’t paying incompetent lawyers to do nothing. It’s funding something far more important. It’s funding the protection of the Constitution.
Do you know what happens every day in the criminal justice system? The law is followed, changed or challenged. And that happens in the brightly lit, heavily populated courtrooms on which no light is shined. Public defenders (and other defense attorneys) are playing a long, complicated chess game with the government. At stake: your individual freedoms.
Tomorrow, when you wake up and wonder why there needs to be a debate about whether the President has the authority to order drone strikes to kill American citizens on American soil without due process, it’s because every incremental battle leading up to that preposterous proposition has been lost. Tomorrow when you get pulled over and the cop looks through your cell phone or pulls you out of your car and frisks you or lies to you and gets you to admit that you committed a crime that you didn’t, realize that those battles have been fought and lost.
These battles aren’t won or lost in cases of innocent people. Name every single case that you might know. They were all guilty. Ernesto Miranda? Guilty. Clarence Gideon? A criminal. Michael Crawford? Stabbed a dude. Ferdinand Oquendo? Killed a dude.
And it may be that those battles were well fought and would’ve been lost anyway. But you’d have known about them, if you paid attention. And maybe you’d have cared and demand differently of your legislators and lawmakers and governors who appoint judges who make these decisions.
Because, whether you realize it or not, you have entrusted your rights to me. I am their guardian. My black-or-Hispanic-lives-in-a-shitty-neighborhood-has-a-criminal-record-was-probably-robbing-a-bank-client’s Fourth Amendment rights are the same yours. Or rather, your rights are the same as his. If you want the government to truncate his rights because you judge him as “the other”, then realize that you’re giving the government full license to truncate your rights too. Don’t worry, I’ll fight just as hard when you’re standing next to me, but it might be too late then.
So decide today, America. What is more important to you: liberty, freedom and justice or just the idea of it?
I’ll be here either way.
Other reading (will try to update continually through the day):
- Oyez Project (listen to the oral argument).
- Gamso: An Obvious Truth
- Greenfield: The Silence of Gideon
- Bobby G. Frederick: Happy Birthday Gideon
- Windypundit: 1-800-LAW-REP-4
- NYT: Gideon’s Muted Trumpet
- The Guardian: Why it’s one law for the rich in America and McJustice for the rest
- Stephen B. Bright and Sia M. Sanneh: Fifty Years of Defiance and Resistance After Gideon v. Wainwright [PDF].
- Second Class Justice: 50 years after Supreme Court declares lawyers are constitutionally required, the right to counsel is violated every day in criminal courts
- Connecticut Law Tribune: Public Defender Resigns Over Lack Of Resources
- The Atlantic: How Americans Lost the Right to Counsel, 50 Years After ‘Gideon’.
- HuffPo: Is the right to counsel for criminal defendants a myth?
- NYT: The Right to Counsel: Badly Battered at 50.
- USA Today: You have the right to counsel. Or do you?
- The Atlantic: In Texas, From a Chief Justice, Welcome Candor About Unequal Justice
- ABA Journal: Fifty years after Gideon, lawyers still struggle to provide counsel to the indigent
- NYT: Right to Lawyer Can Be Empty Promise for Poor
- Billings Gazette: 50 years after Gideon, public defense promise unfulfilled
- Monterey Herald: Gideon’s promise: 50 years after landmark case, public defenders worry about their future
- Washington Post: Indigent clients suffer as public defenders struggle to keep up with caseloads
- The Atlantic: Eric Holder: A ‘State of Crisis’ for the Right to Counsel
- Atlanta Journal-Constitution: Landmark Gideon ruling marks 50th anniversary
- CNN: ‘Gideon’ at 50 and the right to counsel: Their words
- U.S. News: A ‘nobody’s’ legacy: How a semi-literate ex-con changed the legal system
- Vanita Gupta and Ezekiel Edwards (ACLU): Too Many Still Wait to Hear Gideon’s Trumpet
- Colorlines: On ‘Gideon’s’ 50th, a Crisis in Public Defense Deepens Racial Inequality
- The Tennessean: Leonard Pitts: ‘Gideon’s’ promise still unfulfilled
- National Law Journal: Gideon’s promise still unfulfilled
- Karen Houppert in the Washington Post: Indigent clients suffer as public defenders struggle to keep up with caseloads
- Andrew Cohen (again) for the Brennan Center for Justice: The Lies We Tell Each Other About the Right To Counsel
- Milwaukee Journal Sentinel: Commemorating the right to counsel
- Duluth News Tribune: Our view: A good effort here could be improved
Image of Clarence Earl Gideon’s tombstone credit Diane L. Wilson/Associated Press taken from this NYT article.