The Right to Counsel & Public Defense Reform

Our Constitution is the founding contract of our collective interests, establishing the core tenets of a free society and creating a government whose authority and power is vested upon it by its citizens.  Of all the powers we give over to our government under this unique social contract, the authority to punish us for our crimes is the greatest and most fearsome.  We entrust to our government the administration of our judicial systems in exchange for its promise to guarantee equal justice before the law — assuring victims, the accused and the general public that resulting verdicts are fair, correct, swift and final.

Our justice systems are far too complex for most people to navigate without help — let alone those who too often are in need of public defender services: the under-educated, inarticulate, the mentally ill, the developmentally delayed, and children.  In the case of Gideon v. Wainwright, the United States Supreme Court concluded: “reason and reflection[] require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  Declaring it an “obvious truth” that “lawyers in criminal courts are necessities, not luxuries,” the Court ruled that states must provide counsel to indigent defendants in felony cases.

Since Gideon, the Court has consistently afforded the Sixth Amendment right to counsel to all people who face the possibility of a loss of liberty in a criminal proceeding.  And, in 1967, the Court recognized in In re Gault that a child’s loss of liberty “is comparable in seriousness to a felony prosecution.”  Accordingly, assistance of counsel is a right in all delinquency cases in which the child or her parent cannot afford private counsel.

Though nearly 50 years have passed since the United States Supreme Court deemed the right to counsel “fundamental and essential to fair trials,” indigent defense services in the United States are in a perpetual “state of crisis.”  Many states either have been unable or unwilling to adequately fund and administer indigent defense delivery systems.  Instead, they permit the judiciary to improperly inject itself into the defense function; force attorneys to carry excessive caseloads; fail to provide attorneys with the investigators, experts and support services they need to meet the basic parameters of adequate performance; neglect to provide any type of meaningful supervision to hold lawyers accountable for less than zealous representation; and refuse to make available on-going training to keep attorneys abreast of ever-evolving criminal justice sciences.  These underfunded and poorly administered systems compromise the ability of the lawyers employed by or under contract with those systems to meet their constitutional and ethical obligations to their clients.

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Publication Date: 2010