Academic journal article The Yale Law Journal

Fifty Years of Defiance and Resistance after Gideon V. Wainwright

Academic journal article The Yale Law Journal

Fifty Years of Defiance and Resistance after Gideon V. Wainwright

Article excerpt



Every day in thousands of courtrooms across the nation, from top-tier trial courts that handle felony cases to municipal courts that serve as cash cows for their communities, the right to counsel is violated. Judges conduct hearings in which poor people accused of crimes and poor children charged with acts of delinquency appear without lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before and will never see again. Innocent people plead guilty to get out of jail. Virtually all cases are resolved in this manner in many courts, particularly municipal and misdemeanor courts, which handle an enormous volume of cases. But it is also how many felony cases are resolved.

Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads. These lawyers practice triage as they attempt to represent more people than is humanly--and ethically--possible without the resources to investigate their many clients' cases, retain expert witnesses, and pay other necessary expenses. As a result, they are unable to give their clients informed, professional advice during plea negotiations, which resolve almost all cases in "a system of pleas, not a system of trials." (1) In the rare case that goes to trial, defense counsel often cannot seriously contest the prosecution's arguments, raise and preserve legal issues for appeal, or provide information about the defendant that is essential for individualized sentencing. For the poor person accused of a crime, there may be no adversarial system. Prosecutors may determine outcomes in cases with little or no input from defense counsel.

There are exceptions. Some jurisdictions have provided the resources, independence, structure, training, and supervision that enable capable, caring, and dedicated lawyers to zealously represent their clients. Some public defenders and assigned counsel do heroic work despite overwhelming caseloads and lack of resources. But in many jurisdictions, perfunctory representation and "meet 'em and plead 'em" processing of human beings through the courts remain the dominant culture. Many courts are plea mills: courts of profit that impose fines without any inquiry into the ability of defendants to pay, thus setting them up for failure and return to jail.

The representation received by most poor people accused of crimes--if they receive any at all--is a far cry from the constitutional requirement of the "the guiding hand of counsel at every step in the proceedings," which was established by Gideon v. Wainwright (2) and its progeny. (3) Gideon held that "fair trials before impartial tribunals in which every defendant stands equal before the law" "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." (4) The Court also discussed equality before the law in another case decided on the same day as Gideon, reiterating its previous statement that "there can be no equal justice" where the kind of justice a person gets "depends on the amount of money he has." (5)

Nevertheless, most states, counties, and municipalities--responsible for over ninety-five percent of all criminal prosecutions (6)--have refused to provide funding necessary for counsel and equal justice, despite repeated reports of deficient representation and gross miscarriages of justice. There is no public support for such funding, and governments have no incentive to provide competent representation, which could frustrate their efforts to convict, fine, imprison, and execute poor defendants. Many state governments have a long history of disregarding or resisting unpopular United States Supreme Court decisions--whether they require desegregation of the schools or the right to counsel--unless these decisions are enforced. …

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