Academic journal article Washington and Lee Law Review

Lamentations, Celebrations, and Innovations: Gideon at 50

Academic journal article Washington and Lee Law Review

Lamentations, Celebrations, and Innovations: Gideon at 50

Article excerpt

What does one name a symposium for the 50th anniversary of Gideon v. Wainwright? Celebrating the right to counsel? Lamenting the right to counsel? Observing the right to counsel? Few cases are as simultaneously lamented and celebrated as Gideon, the case that established the right to appointed counsel in felony cases. On the one hand Gideon is famously and rightly celebrated as an effort to increase the fairness of the criminal justice system and to ensure that criminal convictions are obtained only through "fair trials before impartial tribunals in which every defendant stands equal before the law."1 The reality of the right to counsel, however, has never lived up to Gideon's promise.

Mark Twain is said to have described law as "a system that protects everybody who can afford to hire a good lawyer." No observer of the criminal justice system today would argue that the right to appointed counsel works well. As the country's criminal justice system has exploded in size and scope in the half century since Gideon, the systems of indigent criminal defense have failed entirely to keep pace.

Stories abound of overburdened public defenders and criminal defense lawyers failing to provide meaningful and effective representation. In one particularly egregious example, a Texas lawyer slept through part of his client's 1996 capital trial.2 Despite the inadequacy of the representation in that trial, the Texas Court of Criminal Appeals upheld the defendant's death sentence. The system is indeed broken.

The Supreme Court's mandate that all states provide counsel to those accused of serious crime comes up today against the backdrop of scarcity among the states. When Gideon was decided, fewer than half of all criminal defendants were indigent; today, more than 80 percent are.3 A criminal justice system that incarcerated 217,283 people in 1963 today incarcerates approximately 2.3 million.4 The war on drugs has exacerbated already high levels of incarceration, with a particularly devastating impact on communities of color. As a result, states increasingly face higher rates of prosecution and correspondingly higher demands for indigent criminal defense. As resources are inevitably spread thin, the promise and legacy of Gideon have suffered, in some cases significantly. …

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