The title of this blog post comes from the 1963 Supreme Court decision Gideon v. Wainwright establishing a right to counsel for indigent criminal defendants. I like to point to Gideon as one of those cases that shows good things can happen for regular people if we actualize the promises made in the Constitution. However, Gideon’s promise is constantly under threat by the weight of bureaucracy, indifferent or hostile policy makers, and an ever expanding police state. I want to talk about three bits of recent news regarding the right to counsel.
THE GOOD
I want to start by flagging this Reuter’s article by Nate Raymond about an exciting development at the Supreme Court. Essentially the U.S. Judicial Conference is creating a special office to represent indigent people appealing to the Supreme Court. Arguing at the highest court is a very complicated and specialized endeavor. Most cases with indigent clients get appealed up by a patchwork of private firms or already stressed public defender agencies. This new office should help close the advocacy gap and even the playing field for indigent people.
THE BAD
This article is about a public defender refusing to take on more cases because their current caseload is so high they cannot ethically represent the cases they already have. It is no secret that public defenders are overwhelmed and with a massive caseload. To give you an idea, a recent study found the average time needed to represent an individual in an adult criminal case competently ranges from 286 hours to 13.5 hours, depending on case type. A lawyer is under an ethical duty to “act with reasonable diligence and promptness in representing a client.” Which means a workload must be controlled so the lawyer can handle the case competently.
A popular meme account on instagram, publicdefenderproblems, frequently highlights the herculean caseloads public defenders carry.
THE UGLY
This new article by Ben Polk explores the advocacy crises from the perspective of funding. How much would it cost to hire enough lawyers to give competent representation to every indigent client in the United States? To fully actualize the promise of Gideon? In short, four times the amount we are currently spending. Roughly $28 billion a year.