You Have the Right to an Attorney, but How Long Until You Get One? | Opinion
As former public defenders who practiced in state and federal courtrooms across this nation, we saw firsthand the lifesaving difference a lawyer can make for someone accused of a crime. We had the privilege of standing next to children, to adults, to the vulnerable, and to the forgotten fighting for the protections in our Constitution to apply to each and every client. The work was grueling, inspiring, heartbreaking, and vital. And it shaped us—in every aspect of our lives—to see the world through the eyes of those most impacted by the intersection of poverty, race, and the criminal legal system.
March 18 marks the 60-year anniversary of the Supreme Court ruling in Gideon v. Wainwright, which established that all people accused of crimes have the right to an attorney. Combined, we have spent over four decades on the front lines of the fight against mass incarceration as public defenders representing the most vulnerable people accused of crimes. Our experiences navigating this system have shown us all too clearly that the promise of Gideon v. Wainwright has yet to be fully realized—and that dramatic change is necessary to realize that promise as we approach the 60th anniversary of this landmark decision.
Having an attorney with the necessary resources to provide a strong defense during a criminal trial is a constitutional right, not a luxury for the wealthy. Constitutionally required legal representation can determine whether a person lives or dies, whether a parent returns to their family or languishes in jail or prison, and whether a child is able to go to school or instead sit behind bars.
While public defenders often do all that they can to zealously represent their clients, far too often they do not have the necessary resources to provide their clients with the defense the Constitution mandates. Under the continued regime of mass incarceration, it is more important than ever that we invest in a robust public defense system.
Despite heroic efforts, public defenders across the country suffer from unmanageable caseloads and a lack of critical resources. In states like Oregon and Louisiana, public defense systems are in a perpetual state of crisis, with reports of people waiting months on end for a court-appointed attorney. Even for those who are granted a lawyer, public defenders are often unable to provide quality representation due to the high volume of cases.
The right to counsel has an impact on every community in this country. As a consequence of overcriminalization, by the age of 23, an estimated one in three Americans will have been arrested. And four out of five people facing criminal charges are not able to afford to pay for a private attorney, a reality that disproportionately has an impact on economically marginalized and low-income communities and those of color.
We must ensure that our public defense system has the proper resources to provide those accused with the robust defense that is guaranteed by the Constitution. Currently, our public defense system does not have the necessary resources to provide effective counsel to everyone who needs it—leaving many without quality representation, or any representation at all.
The American Civil Liberties Union's docket reflects this reality. We are currently litigating systemic challenges to state public defense systems in Idaho and Maine. And a judge in Missouri recently ordered the state to provide court-appointed attorneys within two weeks, thanks to a challenge we brought against the state. Between our national and affiliate offices, we have been involved in similar challenges in Nevada, California, South Carolina, Washington, Montana, Utah, New York, Pennsylvania, Connecticut, Massachusetts, Michigan, and Louisiana.
Through these systemic challenges and the work of organizers, advocates, and public defenders, we have been able to secure meaningful victories that get us closer to making Gideon a reality. Some states and localities are adopting caseload standards, policies that ensure salary parity with prosecutors, and public service loan forgiveness programs so that more people can commit to public defense work long-term.
But we still have a long way to go. Every actor in the criminal legal system has a role to play to realize the right to counsel: lawmakers must reduce overcriminalization and adequately fund public defense; prosecutors must use their discretion to dismiss or divert cases when appropriate; and judges must uphold their constitutional oath to ensure that each person facing a loss of liberty has a properly resourced attorney. We need to shift from a system of over policing, punishment, and extreme sentencing, to one that recognizes people's humanity and redemption—principles at the heart of the mission of public defense.
On this anniversary of Gideon v. Wainwright, let's commit to finally taking the steps necessary to realize the right to counsel for everyone in the nation.
Yasmin Cader is a Deputy Legal Director at the ACLU and the Director of the Trone Center for Justice and Equality, which encompasses the Racial Justice Project, Criminal Law Reform Project, National Prison Project, Capital Punishment Project, and the John Adams Project.
Cynthia W. Roseberry is the acting director of the ACLU's Justice Division. She leads the ACLU's political advocacy to reform the criminal legal system and was previously a public defender.
The views expressed in this article are the writers' own.
