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Monday, March 11, 2013

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Posted by Douglas A. Berman on March 11, 2013 at 12:23 PM in Criminal Law, Current Affairs, Judicial Process, Life of Law Schools | Permalink


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"If there was a good mix of civil work for the indignant mixed in,"

You did that on purpose - fess up. :-)

Posted by: concerned_citizen | Mar 12, 2013 1:01:40 AM

These days, Brad, most good criminal defense lawyers, especially in state systems, need to get up to speed pretty quickly concerning issues relating to family law and immigration law. And, in a well-functioning system, the development and execution of (written) plea deals can and should give a defense attorney on-the-ground experiences with negotiating and executing contracts.

Ultimately, there will end up being lots of sink-or-swim dynamics for any Teach-for-America-type setup for law school graduates. But given the problem that many law graduates right now are in a sink-and-sink-further world because of their debt burdens and the disinclination for firms (and their clients) to pay for "on-the-job" training for junior lawyers, this kind of program would likely be a benefit for recent grads (and, ideally, for the people whose legal needs they can help serve).

Especially if a two-year "Lawyering for America" was seen by BigLaw as a great way for junior lawyers to get experience and confidence (and loan repayment help) somewhat akin to what happens now with federal judicial clerkship, I think such a program could and would become real popular, real fast for certain sets of wanna-be litigators.

Posted by: Doug B. | Mar 11, 2013 5:50:16 PM

The problem with a Teach for America type setup is that there isn't a natural path from public defense to anything for more then a few thousand lawyers every year. More new lawyers graduate every year than there are total private attorneys who do defense work full time. If there was a good mix of civil work for the indignant mixed in, you might have an attractive launching point for a career as a general practitioner.

Posted by: brad | Mar 11, 2013 2:29:37 PM

Lincoln Caplan's last experience with actually working as an attorney was clerking for the Connecticut Supreme Court in 1976. He spent eight years as the "Knight Senior Journalist" (whatever the hell that means, on the faculty of a law school) at Yale, and taught nonfiction writing at the law school and in the English department - which is why, I suppose, he views our criminal justice system as being in need of a hundred thousand John Grisham protagonists.

I don't accept that it is somehow a mark of professional failure to bargain for a lower sentence than your client may well be facing, and to advise him to accept it if you think you'll lose at trial. No part of this country's state judiciary is funded to handle all criminal defendants being afforded a trial by jury within six months of indictment, and no state legislature is interested in rewriting their sentencing guidelines simply to give defense attorneys less terrible consequences for failure to plea bargain in the face of likely defeat. Does Caplan suggest that defense attorneys prove their strength by downplaying the risk of a maximum sentence to a client, or ignoring that client's wishes and pushing for trial after the client has opted for an alternative?

(P.S. These "weak defense attorneys" he's talking about are your (meaning law schools writ large, not Doug B. only) graduates. Any stirring defenses of your schools' product, ladies and gentlemen?)

Posted by: Morse Code for J | Mar 11, 2013 2:04:24 PM

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