Walk into nearly any criminal court in the country and this is what you’ll likely see: A bunch of defendants—probably black or Latino and poor—sitting beside an attorney whom they haven’t talked to for more than five minutes. The judge will ask an orange-jumpsuited defendant if he really committed the crime to which he’s about to plead guilty, and whether he’s been coerced into confessing. He’ll say yes to the first question, no to the second then exit through the back door, county-jail bound. The lawyer will stand up and another defendant will fill the seat of the one who just left.
Today marks the 50th anniversary of Gideon v. Wainwright, the Supreme Court case that granted these defendants the right to sit beside that attorney. The 1963 decision was supposed to guarantee that all poor defendants would have counsel, that a justice-for-some system would begin to provide justice for all.
But Gideon came 20 years before the escalation of the war on drugs and the mass incarceration of mostly black and Latino people for nonviolent offenses such as marijuana possession. Today’s public defenders are juggling hundreds of cases and spending about six minutes on average per arraignment. Ninety percent of criminal defendants take pleas rather than go to trial, even though those agreements often lead to life-altering consequences—prison time; exclusion from housing, jobs and federal financial aid; the loss of voting rights; and, for immigrants, automatic deportation.
“‘Meet ‘em and plead ‘em’ is how it works,” says Steven B. Bright, president of the Southern Center for Human Rights and a leading advocate for improving indigent defense. “It lays bare the utter corruption of the system because the judge knows that there’s no [real] representation happening.”
Because public defense systems can’t keep up with their caseloads, some say that, in practice, Gideon actually bolsters a criminal justice system riddled with racial inequity. They agree that “meet ‘em and plead ‘em” needs fixing but point to the routine criminalization of low-level offenses as the root of the problem.
It Doesn’t Matter If You’re Black Or White—Or Does It?
Clarence Earl Gideon, the plaintiff in the 1963 challenge, was an itinerant white man with a history of criminal convictions. In 1961 he was arrested and charged with burglarizing a Florida pool hall. Broke and without a lawyer, Gideon requested a court-appointed attorney. The court refused—Florida law only allowed free counsel for poor people fighting capital felony charges. So Gideon, maintaining his innocence, represented himself. He was convicted and sentenced to five years in prison.
From lockup, Gideon drafted a letter to the Supreme Court claiming that the state had violated his Sixth Amendment right to counsel. The high court took the case and ruled in his favor. The decision promised to reshape the criminal justice system. “Gideon offered, a color-blind, neutral way to appeal to fairness and justice in representation of criminal offenders,” says Anthony Alfieri, a University of Miami law professor.
Today, however, the idea of a neutral, colorblind criminal justice system is little more than a fantasy. In 1963, there were about 300,000 people locked up in jail and prison. Now there are well over two million. That growth was cultivated on the backs of people of color who, today, make up nearly 60 percent of state prison populations. In fact, a whopping 40 percent of state prisoners are black and most are locked up for nonviolent offenses like simple drug possession (think marijuana). People of color don’t have a premium on drug use; sentencing guidelines have simply held that the cheaper and more urban the drug, the higher the penalty will be for using or selling it. Even as federal sentencing guidelines have become more equal, racial profiling by police departments has ensured the steady flow of new cases.
Take New York City, where today a major class action suit begins over the city’s stop-and-frisk program. About 87 percent of the mostly young men whom NYPD beat cops push up against walls and pat down because they “look suspicious” are black or Latino. The department concentrates its efforts in communities of color; and routinely stops kids and people of color walking around white neighborhoods. Their alleged goal is to get guns off the streets, but in practice, the policy has resulted in many more marijuana arrests.
Nationally, men of color are more likely to rely on a public defender. A Bureau of Justice Statistics report from 2007 found that 69 percent of white men in state prisons were had public defenders compared to 73 percent of Latino and 77 percent of black men.
A Right to Incompetent Counsel
It so happened that in 1984, at the dawn of mass incarceration, a far more conservative Supreme Court heard a case that could have beefed up the right to counsel that Gideon had secured. That year, David Leroy Washington, another Florida man, appealed his death sentence to the high court on grounds that his court-appointed defender had failed to present evidence that could have gotten him a lesser sentence. The justices refused to grant Washington a new trial. “The court said that even if you find that the lawyer is incompetent, it doesn’t matter if you don’t prove it makes a difference in the outcome of the case,” Bright explains.
The state of Florida executed Washington and his case, Strickland v. Washington, rendered indigent defense an on-paper formality rather than a real-life path to justice.
With this limited view of the right to effective assistance, the Supreme Court let states decide how to structure their public defense systems. The result? Vast differences from state to state, and county to county.
For example, according to my calculations of the most recent indigent defense data from the American Bar Association (PDF), Massachusetts spends about $285 in public defense funds for every poor person in the state while Missouri puts up about $40 for every person living below the poverty line. Within the 20 or so states that require counties to cover most or all of their public defense systems, there are similar spending gaps between localities.
Bright says counties in particular tend to do indigent defense on the cheap: “County commissioners want to keep taxes as low as they can, and they have zero interest in defending criminals,” he says. “They put public defense out to low-bid contracts—to the lowest bidders.” In some counties, private attorneys are assigned indigent cases and they get paid a fraction of the fees they’d charge their private clients.
Even the most committed attorneys lack the resources to fight an indigent case. They can’t afford, say, an investigator to dig up mitigating evidence, and they often don’t have time to reach out to witnesses or develop a defense that matches the particulars of their client’s life. At their best, public defenders can match the zeal of prosecutors, but they’re outmatched in time and money.
Money Matters, but Only to a Point
Even in states or counties with unified systems and adequate funding—those places where defense attorneys have social workers, investigators and legal assistants on hand—the courts are overwhelmed by the sheer volume of cases.
As the birthplace of Gideon, Florida has one of the most centralized public defense systems and a relatively high level of funding. But in some of its counties, public defenders have been known to handle upwards of 500 felony cases each year. That’s more than three times the threshold set by the American Bar Association.
To reduce their caseloads, the Miami public defenders’ office sued the county. That suit is pending, but local leaders say that more money and a lighter caseload won’t lead to a fairer system.
“We can not buy our way out of this problem,” says Carlos Martinez, the elected head of Miami-Dade County’s public defender system. “You have to be able to go upstream and figure out if you’re prosecuting the most serious crimes.”
Martinez notes that for the first time in his tenure as a public defender, his attorneys are seeing a drop in new cases. Why? Because county budget cuts eliminated police overtime; less overtime meant fewer police hours and fewer police hours resulted in fewer arrests for low-level crimes. “Budget cuts impacted the entire system, including a significant reduction of people in jail at any given time,” says Martinez.
No doubt, budget issues can cut the other way too. A year ago in Louisiana, the New Orleans public defender’s office lost about $2.5 million of its $9.5 million budget due to a shortfall. That cut triggered layoffs and, of course, rising caseloads for the remaining lawyers.
“In some places, attorneys are not able to comply with their ethical obligations,” says Martinez. But ultimately, he adds, “we can’t keep throwing money at the issue and think you’re going to be able to keep up.”