Constitutional Law

Report Details 'Neglect' of Right to Counsel

By Virginia E. Sloan, President of The Constitution Project

On April 14, 2009, the National Right to Counsel Committee released its groundbreaking report on the crisis in our country's indigent defense system. It has been more than 40 years since the Supreme Court's decision in Gideon v. Wainwright, holding that poor defendants in felony cases have the right to a publicly funded lawyer. Since then the Court has expanded that ruling, applying it to other criminal and juvenile delinquency cases. The Committee, an independent, diverse group that examined the nation's ways of providing defense services for the poor, is sounding the alarm about the grave problems that exist today across our country.

The Committee's report, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, demonstrates that across the United States, indigent defense systems are failing. Notwithstanding the dedication of lawyers and other committed staff, quality defense work is frequently impossible due to funding shortfalls, excessive caseloads, and a host of other problems. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems. In the country's current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent people will be greater than ever. Although problems in indigent defense systems have long existed, the need for reform has never been more urgent.

The Committee's two-fold mission was to examine whether criminal defendants and juveniles charged with delinquency who are unable to retain their own lawyers receive adequate legal representation, consistent with decisions of the Supreme Court and rules of the legal profession, andto develop consensus recommendations for achieving lasting reforms.

The National Right to Counsel Committee is sponsored by the Constitution Project, an independent think tank based in Washington, DC, whose mission is to promote and defend constitutional safeguards. The bipartisan Committee includes an extraordinary group of individuals, with a diversity of viewpoints shaped by their service at the highest levels of every part of federal and state justice systems. Committee members have experience as judges, prosecutors, defense lawyers, and law enforcement officials; members also include nationally-known law school academics, bar leaders, a victims' advocate, and an exonerated individual. 

Justice Denied is not just for those who provide indigent defense services, although everyone in the business of providing such services will surely find it of interest. Instead, the report should be required reading for legislators, executive branch officials, judges, researchers, bar leaders, and everyone else who possesses the power to remedy or influence the problems that this report vividly documents.

One of the Committee's most important recommendations is that indigent defense services should be independent, non-partisan, organized at the state level, adequately funded by the state from general revenues, and overseen by a board or commission. Of equal significance is the Committee's recommendation that the federal government assist the states in the delivery of indigent defense services. For more than 45 years, the states and/or counties have struggled—and continue to struggle—to implement the Gideon decision and its progeny. The right to counsel is a federal guarantee based upon the Sixth Amendment to the United States Constitution, and it is entirely fitting that the federal government assist in its implementation. Finally, the Committee emphasizes that, in order to achieve reform at the state level, it is vital that a coalition of partners be engaged as part of a comprehensive strategy. The judiciary, bar officials, community leaders, public interest organizations, national associations of lawyers, and others need to be enlisted as partners to persuade the legislature of the importance of an adequate statewide program of indigent defense.

Justice Denied provides extensive empirical documentation of the problems, as well as a detailed roadmap for accomplishing the reforms that are essential investments in America's future. As Judge Learned Hand said many years ago: If we are to keep democracy, there must be a commandment: Thou shalt not ration justice.

Justice Denied is the handbook that lights the way toward genuine and lasting improvement in thedelivery of indigent defense services in America, thus enhancing the quality of justicefor all. Its findings and recommendations must—at long last—be heeded.  The Right to Counsel's report is available here.

Full post as published by ACS Blog on April 14, 2009 (boomark / email).