In 1963, Gideon settled
the fundamental rights debate when the Court denounced the Betts interpretation of the Sixth Amendment right to counsel
stating, “Twenty-two states . . . argue that Betts was ‘an anachronism when handed down,’ and that it should be
overruled. We agree.” Today, the focus of the debate
surrounding Gideon has shifted away
from the Sixth Amendment’s fundamental rights implications. Instead, scholars and activists alike
lament the inadequacies of the criminal justice system in implementing the
Supreme Court’s mandate.[1]
It seems clear that as a society we are only ready to
support this fundamental right in theory rather than in practice. The majority of the implementation
difficulties stem from the states’ refusal to adequately fund public defender
offices. It is no secret that
public defenders regularly face seemingly insurmountable caseloads, but to
expect them to do so without proper funding should itself be considered
violative of the Sixth Amendment fundamental right. Though the past fifty years can be characterized as a weak
attempt at best—and perhaps more accurately an outright failure, perpetuating
discrimination against the poor—it may be safe to say that our biggest obstacle
to constitutional representation has just recently arrived in the new federal
sequester.
Through technicality, Congress retains authority to
retroactively pass a budget that would postpone budget cuts that threaten to
crush an already anemic judiciary.
However, should the sequester take effect, “money for federal defender organizations
would be reduced by $53 million.”
According to the report, “defender salaries would be reduced by four
percent, non-salary funds by twenty-five percent and training funds by fifty
percent.”
Salary reductions will almost certainly be handled by
furloughs, a prospect with which employees across many federal agencies may
soon become familiar. The cost of
defender furloughs, however, will have a deeper impact than simply bringing
home a smaller paycheck. These
furloughs will have real costs for clients and attorneys alike. In the courtroom, furloughs will
present scheduling difficulties, and in some cases may cause defendants to
remain in detention longer than necessary.
One suggested solution may be to simply have a colleague
stand in for a defender who happens to be on furlough on a day she is assigned
to be in court. While this may
provide a temporary fix, it should not be considered acceptable under Gideon standards. An attorney who is merely acting as a
substitute in court will not be familiar with the intricate details of the case
and therefore will be unable to articulate the best arguments on behalf of the
client. Furthermore, each time a
defendant is made to attend court with a new attorney, it will undermine the
trust-based relationship that takes time and hard work to form. This will create a barrier between the
client and attorney in future proceedings, again, harming the quality of
representation. Finally, it should
not be overlooked that habitually taking on colleagues’ cases would lead to an
increase in already excessive defender workloads.
Non-salaried cuts to defender budgets will only amplify
the inequalities that Gideon was put
in place to fight. These types of
cuts may include limiting the use of expert witnesses including cultural
specialists, forensic scientists, and mental health experts. In the course of a criminal case one of
the primary functions of a public defender is to conduct vigorous investigation
into both the alleged offense and the client’s history. For the prosecution, the majority of
investigation has already been completed by the police; thus alleviating a
major financial burden for the prosecutor’s office. Since the defense does not have such a luxury, much of a
lawyer’s own time is often spent investigating the details of the police
report. This will be precious time
that defenders will not have if they are forced to accept increased caseloads
due to the sequester.
Additionally, specialty experts will not be able to be afforded as
investigation into the client’s history if the proposed twenty-five percent cut
is put into effect. These basic
necessities should be considered non-negotiable, and if disposed of, should be
considered a violation of Gideon’s
promise.
Finally, a fifty percent cut on training costs is perhaps
the most troublesome in the wake of controversy surrounding Gideon’s half-century failure. While hiring new defense attorneys in
this economic climate would not appear to be an option, the above examples
illustrate that to fulfill the fundamental right to counsel, more attorneys are
needed to alleviate unrealistic caseloads. With a fifty-percent cut, the new attorneys that would be
hired would undoubtedly not be getting the same quality training that was
available before the cuts were placed into effect. Moreover, new attorneys are not the only attorneys who require
training. With the many criticisms
surrounding our contemporary criminal justice system, more training needs to be
implemented for judges and attorneys alike that address progressive issues such
as implicit racial bias in the courtroom and alternatives to incarceration as
punishment. With such a drastic
cut in training programs, we cannot expect our defenders—or our judiciary as a
whole—to progress towards desirable reforms.
It is worth noting that on the surface the above-mentioned
problems may appear only to apply to defendants accused of federal crimes. Practically, this will not be the
case. While the sequester only
explicitly targets federal budget cuts, a weakened federal government will
prove detrimental to state public defender offices as well. The state governments that often take
the most money from the federal government each year are also the states whose
public defender budgets are most lacking.
The Supreme Court made a promise to all citizens that
their economic status would not be determinative of their right to have
representation at a criminal trial.
Today, the federal sequester threatens to take away what little that
guarantee has come to mean.
Ali Eacho
Junior Blog Editor, Criminal Law BriefFor the ABA's program on the 50th Anniversary of Gideon v. Wainwright, please click here.
- Courtesy of the ABA.
[1]
[1] See, e.g., (a) http://www.abajournal.com/magazine/article/fifty_years_after_gideon_lawyers_still_struggle_to_provide_counsel/;
(b) http://www.theatlantic.com/national/archive/2013/03/how-americans-lost-the-right-to-counsel-50-years-after-gideon/273433/;
(c) http://www.nytimes.com/2013/03/10/opinion/sunday/the-right-to-counsel-badly-battered-at-50.html?smid=tw-share&_r=0.
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