Monday, March 18, 2013

50 Isn’t the Only Number to Watch: How the Federal Sequester Will Affect Gideon’s Right to Counsel

Fifty years ago today, Gideon v. Wainwright announced a right to counsel as a reflection of a consensus of the States that regardless of economic status representation was a fundamental right under the Sixth Amendment.  Now, with Congress on the brink of solidifying major budget cuts across all federal agencies, the very right that Gideon created is in greater jeopardy than ever before.

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 Brief

For 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); (b); (c)

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