We recently marked the 50th anniversary of the Supreme Court’s landmark decision in Gideon v. Wainwright, which held that states are constitutionally required to provide criminal defense counsel to individuals charged with a felony and unable to afford a lawyer on their own. Before 1963, individuals charged with a criminal offense were subject to patchwork rules regarding the right to counsel, effectively at the whim of states, some of which provided protections in their constitutions, some in state or local statutes, and some not at all. The Gideon decision made clear that every state had an obligation to protect the fundamental constitutional right to counsel, by providing attorneys for those defendants too poor to hire their own in felony prosecutions.
Too many jurisdictions across the country are still not meeting their full constitutional obligation to ensure this right. And Texas is one of them.
In 1961, Clarence Earl Gideon was charged with breaking and entering a pool hall, reportedly to steal some wine and some change from vending machines, a felony under Florida law. Too poor to hire an attorney himself, Gideon explicitly requested that the Bay County Circuit Court judge appoint counsel for him. But the judge declined, noting that under Florida law, the court could only appoint counsel in a capital case, i.e., when the death penalty could be imposed. As a result, Gideon, who had no formal legal training, represented himself as best as he could, was convicted, and sentenced to five years in state prison. He appealed to the Florida Supreme Court, but that court denied Gideon all relief without a written opinion. Gideon then appealed to the U.S. Supreme Court with a handwritten, five-page petition. Gideon argued that the state’s failure to appoint counsel violated his federal constitutional rights, namely the Sixth and 14th amendments. Legal scholars report that the Court had been looking for the right case to consider whether to overturn its previous decision in Betts v. Brady that poor criminal defendants in states had no right to a lawyer unless they could pay for it themselves. By accepting Gideon’s petition, it chose his case as the vehicle. The Supreme Court not only accepted the case, but it appointed Abe Fortas, one of the country’s leading constitutional lawyers, from the law firm now known as Arnold & Porter, to represent him. Gideon went from having no lawyer at all to having one of the best in the country.
On March 18, 1963, the Supreme Court unanimously held that the State of Florida had violated Gideon’s constitutional rights, explaining that lawyers in criminal cases are “necessities, not luxuries.” For the first time, the Court explained that the Sixth Amendment’s right to counsel provision was a fundamental and essential right to a fair trial, and that the states were required by the Fourteenth Amendment to enforce it. The Court stressed that the “noble ideal” of a fair trial before an impartial tribunal could not be realized “if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Once his conviction was reversed, Florida decided to retry him. Demonstrating the truth of the Court’s words, this time, with the valuable assistance of counsel, the jury acquitted Gideon of all charges after deliberating for an hour.
While Gideon clarified that the right to counsel exists for defendants charged with felonies, the Supreme Court in later decisions held that the right to counsel exists for all those facing imprisonment, such as those charged with a misdemeanor, as well as during direct appeal of a conviction and during plea negotiations. Yet the story does not end there. The Court’s Gideon decision left many things unclear, and what seemed like a great victory has become a legal crisis.
In 2009, The Constitution Project’s National Right to Counsel Committee, on which one of us serves as an honorary co-chair, issued a thorough report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, describing the failures of Gideon in the 50 years since it was decided. Throughout the United States, indigent defense systems are struggling, as funding shortfalls, excessive caseloads and lack of standards and oversight combine to deny justice to the poor. Poor compensation, especially for appointed attorneys, discourages participation in indigent defense; the fees received as compensation may not even cover overhead costs. And the excessive workloads that public defenders are asked to carry often put them in conflict with their oaths as members of the bar and their duties to clients as set forth in the rules of professional conduct.
After the Gideon decision, Texas struggled for many years, attempting to translate the “right to counsel” into a meaningful indigent defense system. In 2001, the Texas Legislature passed the Fair Defense Act of 2001 to finally address the major problems facing Texas’ indigent defense system. Notable among the problems it hoped to address were a lack of uniformity in the process for appointing counsel (including creating an independent system for appointment of counsel rather than letting judges select counsel), no consistent standards regarding training or experience, no state funding or oversight, and inconsistencies in attorney qualifications for death penalty cases. The Fair Defense Act put in place structures to improve, and hopefully eliminate, many of the systemic problems in Texas’ indigent defense system. The Act finally allocated state funding to these systems, instituted oversight authority (including transparency through required reports) and uniform processes for appointing and compensating counsel to provide a fair, neutral and nondiscriminatory process. But a serious drawback to the Fair Defense Act is that it lets each county determine its own attorney appointment method, indigency standards, attorney qualification standards, and attorney fee schedule.
Since passage of the Fair Defense Act, the Texas Indigent Defense Commission (TIDC) has worked to implement its reforms. The Commission’s mandate is to provide the financial and technical support to Texas counties in developing and maintaining quality, cost-effective indigent defense systems that meet the needs of the local community.
Despite these reform efforts, Texas’ provision of indigent defense still suffers many problems. As Texas Supreme Court Chief Justice Wallace Jefferson noted in his recent biennial address to the Texas Legislature, Texas ranks 48th in per capita spending on indigent defense. In the ten years after the Fair Defense Act’s passage, state funding for indigent defense systems failed to keep pace with demand, such that the counties shouldered upwards of 70 percent of the financial burden to maintain indigent defense systems. The continued failure to provide adequate funding exacerbates problems in managing caseloads and providing meaningful assistance of counsel to those who cannot afford it and who are facing the prosecutorial power of the state.
Still, there are some signs of progress on the horizon. The Texas Legislature is currently considering legislation to end the excessive caseloads most appointed counsel face. As it stands, Texas has four types of indigent defense systems: public defender offices, managed assigned counsel systems, contract defender programs, and a rotational “wheel” system. Current law allows the “wheel” system attorneys to operate with no caseload limit; the proposed legislation (S.B. 592), if passed, ends the “wheel” carve out to ensure that all parts of the Texas indigent defense system are protected from excessive caseloads. Such caseload limits must be strictly enforced — unlike the lax enforcement today — lest they become illusory. Under the proposed legislation, local community needs, as determined by the local criminal court judges, will determine the appropriate attorney caseload limit. This is problematic, since it undermines the goal of a uniform, independent authority to make these determinations. The Constitution should not be subject to local community needs or the decisions of local judges.
Absent effective reform legislation, litigation is another way to force states to comply with the Sixth Amendment. A 2012 Texas Supreme Court decision, allowing a class-action lawsuit for pretrial Sixth Amendment violations to proceed, recently led to a settlement agreement with Williamson County. The plaintiffs in that case accused the county of failing to provide counsel to indigent defendants in misdemeanor cases. Other counties that continue to fall short of their constitutional obligations should take heed.
But more can and should be done, especially as more and more Texans, convicted of crimes they did not commit and spending years in prison, are exonerated. As we noted in a recent op-ed, we fully endorse Chief Justice Jefferson’s call for the Texas Legislature to establish an innocence commission to investigate each instance of exoneration, assess the likelihood of wrongful convictions in future cases and establish statewide reforms. And as we highlighted in our op-ed, other proposals should be considered, including greater access to DNA testing, videotaping interrogations to ensure the accuracy and voluntariness of confessions, blind administration of witness identification lineups and greater preservation and oversight of forensic evidence. Any proposal should directly relate to the structural problems in Texas’ criminal justice system and should be tailored to adequately prevent those problems in the future.
But to be clear, effective assistance of counsel is the first line of defense against wrongful convictions. Competent counsel, appointed at the earliest opportunity, will enable the adequate investigation of defendant’s claims, the thorough review of relevant evidence, and the proper presentation of the defense to the jury. And wrongful convictions add substantial costs to the criminal justice system, including the $65 million Texas already paid to 89 wrongfully convicted individuals since 1992; future exonerations will increase this burden. Yet the TIDC only awarded $12 million in state funds to Texas counties in the past two years. And the funding gap is growing — as the TIDC noted before the Texas House Appropriations Committee, the unfunded gap between state funding and the counties’ needs over the next two years is estimated to be around $135 million. Greater state funding to provide effective assistance of counsel to indigent defendants will decrease the overall financial burden to the criminal justice system.
In ten years’ time we will celebrate the 60th anniversary of Gideon. Texas, as well as all other states, should ensure that indigent defense remains a priority. It would bring discredit to our state of Texas if we observed another milestone anniversary with Gideon’s promise still unfulfilled.
Changes in Travis?
In an ambitious and contested proposal, state district and county court judges in Travis County are looking to remove themselves from the oversight of the system used to appoint private attorneys as counsel for poor defendants. The current structure in Travis County, they say, doesn’t comply with American Bar Association principles and negatively affects their relationships with the lawyers they enlist.
Attorneys say they work in a system that pushes them to reach plea agreements quickly and pays them pittances for massive amounts of work, hampering their abilities to adequately defend their clients and sometimes subverting justice.
The petition seeks to create an Office of Managed Assigned Counsel that would take over the judiciary role in defense services. The new board — which could consist of veteran criminal defense attorneys, judges and retired judges — would systematically review and appoint lawyers to indigent cases and determine how much they are compensated for their efforts.
It is only in its early stages, and some judges are still unsure whether it could succeed, but the proposition is generating wide debate from proponents who believe the system must evolve and from critics who say the changes would only add another level of unneeded bureaucracy.
Currently, the Office of Court Administration takes applications from lawyers who wish to receive court-appointed referrals. Staff members screen them for basic requirements and compile their information to place them on a “wheel” so they can be assigned to cases chronologically.
Find out more online at http://bit.ly/YuA1k7.
Video on Gideon case
To observe the 50th anniversary of the Gideon vs. Wainwright ruling, The Constitution Project produced “Defending Gideon,” a video that dramatically demonstrates continuing failures to provide full access to legal counsel for criminal defendants. Find the video online at constitutionproject.org/publications-resources/defending-gideon.
Mark White served as governor of Texas from 1983 to 1987 and as attorney general of Texas from 1979 to 1983. He co-chairs the Constitution Project’s Death Penalty Committee, which promotes improvements in the death penalty system.
William S. Sessions served three U.S. presidents as director of the FBI. He previously served as chief judge for the U.S. District Court for the Western District of Texas, and before that as the district’s U.S. attorney. He is a member of the Constitution Project’s board of directors.
The Constitution Project, based in Washington, D.C. brings together policy experts and legal practitioners from across the political spectrum to foster consensus-based solutions to the most difficult constitutional challenges of our time.