In 1983, to mark the 20th anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright–which guarantees the right to counsel for poor people accused of crimes–the ABA’s Standing Committee on Legal Aid and Indigent Defendants held a public hearing to explore the adequacy of funding for indigent defense in this country.
At the hearing, witnesses detailed problems, including a severe lack of funding, excessive and rising public defender caseloads, and insufficient attorney compensation. In 2003, to commemorate the 40th anniversary of Gideon, the standing committee held a series of public hearings around the country to examine whether Gideon’s promise was being kept.
The results, in a report released by the committee in early February, show that not much has changed in 20 years. In some respects, the picture is even more bleak. According to the report, “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,” indigent defense services remain in a state of crisis, lack fundamental fairness and place poor people at constant risk of wrongful conviction.
What makes the committee’s report so relevant, says its chair, Bill Whitehurst of Austin, Texas, is the number of innocent people in prison who have been exonerated in the past several years through post conviction DNA evidence. “Not all of these exonerations are attributable to the issues we raise, but many of them are,” he says.
The committee found that funding for indigent defense services is shamefully inadequate, that lawyers who provide such services are often inexperienced or incompetent, and that attorneys are not being provided in numerous proceedings in which the right to counsel exists. The committee also found that prosecutors sometimes seek to obtain waivers of counsel and guilty pleas from unrepresented accused people and that judges routinely accept and sometimes even encourage waivers of counsel that are not knowing, voluntary and intelligent.
Meanwhile, judges and other elected officials often exercise undue influence over indigent defense lawyers, threatening the independence of the defense function, the committee found. And indigent defense systems frequently lack basic oversight and accountability, impairing the provision of uniform, quality services.
“Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation,” the report says. “All too often, defendants plead guilty, even if they are innocent.”
Funding, Structures Impede Progress
The report cites recent reforms in several states. Some examples include the creation of a statewide public defender system in Georgia and the establishment of a statewide commission to oversee indigent defense in Virginia. But while such efforts constitute progress, the committee says, the funding and structures needed to ensure effective defense services in these jurisdictions are still inadequate.
The committee offers several recommendations to address what it describes as a “national crisis”:
• Increased state and federal funding for the delivery of indigent defense services in criminal and juvenile delinquency proceedings.
• Establishment of state oversight organizations to ensure high quality indigent defense representation.
• Reporting by judges to the appropriate disciplinary authorities when defense lawyers violate their ethical duties to their clients and prosecutors seek to obtain waivers of counsel or guilty pleas from unrepresented accused people.
Whitehurst says he hopes the report will serve as a blueprint for reform. It was to be the centerpiece of a daylong conference focusing on indigent defense reform issues during the ABA Midyear Meeting in Salt Lake City.
The report will be posted at www.indigentdefense.org/ brokenpromise.
Ross Shepard, director of defender legal services for the National Legal Aid & Defender Association, says he found particularly interesting the committee’s suggestion that the federal government should help fund the provision of indigent defense services. “It’s a new proposal,” he says, “but one I think is clearly called for.”