by Nick Mariano // The Constitution Project
“Across the country, public defender offices and other indigent defense providers are underfunded and understaffed,” U.S. Attorney General Eric Holder said while addressing the American Bar Association’s National Summit on Indigent Defense.
That was in 2012, a year before the 50th anniversary of the 1963 landmark U.S. Supreme Court decision in Gideon v. Wainwright, a decision that propelled a defendants’ right to counsel -- even if he or she is unable to afford an attorney -- in both federal and state courts. While the Constitution does not guarantee right to counsel at government expense, the Gideon decision did.
“Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight,” Holder continued. “And far too many public defender systems lack the basic tools they need to function properly.”
As a result, he went on to say, “too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed.” Children and adults lack access to legal guidance upon entering the criminal justice system, and some defendants are encouraged to waive their right to counsel.
Many do, agreeing to plea deals that must be accepted immediately, research shows.
Justice, others say, is not being served for reasons that are many, ingrained in an economic and political infrastructure of tough-on-crime laws and stiff penalties, coupled with an overtaxed and underfunded legal system.
Take, for instance, the view of former judge and former FBI Director William S. Sessions, writing in the forward of a 2011 book sponsored by the American Bar Association Standing Committee on Legal Aid and Indigent Defendants.
“Our nation’s public defense system in state courts, with few exceptions, should be a source of great embarrassment for all of us: judges, bar associations, lawyers, public officials and all other citizens.
“For nearly half a century, almost every state has persistently underfunded public defenders and private lawyers who represent the indigent in criminal and juvenile cases. Such widespread resistance to clear the mandate of the Constitution … has, in effect, created one of our legal system’s most shameful deficiencies.”
A System of Pleas
Consider that another provision under the Sixth Amendment – the right to trial – is rarely exercised as roughly 95 percent of all criminal cases in state and federal courts are disposed by plea bargaining, regardless of guilt or innocence.
“We have a system of pleas in the United States,” said Sarah Turberville, senior counsel at The Constitution Project and a former assistant public defender in Maryland.
“We don’t have a system of trials. In too many instances, (public) defenders are in the position of just trying to stay above water,” Turberville continued.
The Constitution Project, headquartered in Washington, D.C., was founded in 1997 as an advocacy group seeking policy reform and public education initiatives in connection with constitutional challenges, the right to counsel among them.
