IN THE UNITED STATES, if you are charged with a crime that might land you in prison, whether a felony or misdemeanor, at the state or federal level, as an adult or juvenile, you have a right to effective representation in court, regardless of your ability to pay for it.
This will come as a surprise to many defendants. If you are poor and facing jail time, you will get your representation eventually, but there is a fair chance it won’t be effective. Some public defenders are incompetent, and some are able and committed. Either way, they won’t have time for you.
It isn't hard to see why. In 2007, the last time the Bureau of Justice Statistics surveyed the nation’s indigent defense services, there were 957 public defender offices employing 15,000 full-time staff. These offices handled about 80 percent of the country’s criminal cases, on a combined budget of $2.3 billion. In that same year, 2,330 state prosecutor offices employed 78,000 full-time staff. Their budgets were falling, but with a total of $5.8 billion in the kitty, their means far outstripped that of their defender colleagues.
Faced with a larger and better-funded prosecution regime, defenders can’t keep up. Twenty-two states operate public defender offices, and 17 reported full caseload information to the Bureau in 2007. Only four of those 17 states had enough attorneys to meet the government’s caseload standards, guidelines for the maximum number of cases that should be assigned to an attorney. Where public defense operates at the county level, less than a third of offices had enough attorneys. Other vital defense staff — investigators, paralegals, administrators — are similarly in short supply. It should come as no surprise, then, that you’re more likely to wind up in jail if represented by a taxpayer-financed lawyer than by one you hire yourself.
The consequences of the defender resource shortfall are obvious in Detroit, to name just one example. In the Motor City, misdemeanor cases are handled by a low-bid private contractor. For $661,400, five part-time attorneys working for the Misdemeanor Defender Professional Corporation dispose of 12,000–14,000 cases per year. That comes to 32 minutes of attorney time spent on each case, according to the National Legal Aid & Defender Association.
The numbers point to a disconnect between the principle — that everyone has a right to effective counsel — and actual practice. That difference haunts the American justice system.
The principle is enshrined in the Sixth Amendment to the Constitution, which states, “In all criminal prosecutions, the accused shall enjoy the right […] to have the Assistance of Counsel for his defence.” The Amendment was ratified, along with the rest of the Bill of Rights, in 1791. Yet for 170 years, this constitutional provision was deemed to apply only in federal courts. A defendant in a state court — where most defendants find themselves — might have had guaranteed access to an attorney, but only in special circumstances or if they were lucky enough to be tried in a jurisdiction that had taken the burden of public defense upon itself.
Not all jurisdictions did, and that is why Clarence Earl Gideon, a petty crook who nonetheless possessed a tenacious sense of justice, petitioned the Supreme Court in a case that would become one of the most significant in the history of American criminal law.
In the summer of 1...read more