Sixty years ago today the Supreme Court ruled that people accused of crimes but without means to pay for a lawyer would be provided with one at public expense.
The promise of that landmark ruling in Gideon v. Wainwright has been frustrated by heavy caseloads for public defenders and tight budgets that prioritize police, prosecutors and prisons over the right to counsel.
"Understaffed, crushing caseloads, underpaid and undervalued, and this is a conscious decision that our legislatures make throughout this country," said Stan German, executive director of New York County Defender Services, at an event in Washington, D.C., this week.
The American legal system is built on the idea that evenly matched adversaries — a prosecutor and a defense attorney — will clash in court, and that back and forth will bring out the truth.
But Yasmin Cader, deputy legal director at the American Civil Liberties Union and a former public defender, said things don't work that way much of the time, especially for people with lower incomes.
"The reality is that in criminal courtrooms across this nation we often find ourselves looking at an assembly line of justice where people are simply processed and rights go unprotected," Cader said.
Attorney General Merrick Garland acknowledged those problems this week
Garland — the chief law enforcement officer in the nation — said his own mentors played a role in working on or supervising the briefs in the Clarence Gideon case in the early 1960s and a senior partner at the law firm now known as Arnold & Porter said he was "the most important client" they had ever represented.
"They knew that there are few things more meaningful and more honorable than applying one's talent, experience and education to representing another person before the state – no matter what that person is accused of having done," Garland said.
Associate Attorney General Vanita Gupta notes that "Defending those accused of crimes is not just a nice thing to do, it is a constitutional requirement. That constitutional requirement helps ensure fairness and legitimacy — and for that reason, every actor in the criminal justice system should be invested in the work of public defenders."
The Biden administration is making access to the courts a priority, reestablishing a standalone Access to Justice office and putting Rachel Rossi, a former public defender, in charge.
In recent weeks, Rossi and other senior Justice Department leaders have traveled across the country to listen to public defenders and hear more about their needs. DOJ also made clear that state and local governments can tap an important source of federal grant funding to pay for public defense.
"Defenders are sometimes the only voice for the voiceless," Rossi told an audience of public defenders this week. "They pursue dignity and humanity for the most vulnerable, and most often without recognition, with little pay, and without sufficient resources."
Senate Judiciary Committee Democrats offer bill aimed at improving public defender retention
On Capitol Hill, Sens. Cory Booker, D-N.J., and Richard Durbin, D-Ill., introduced legislation Thursday to create a new source of grant funding to hire public defenders and raise their pay to try to level the playing field with prosecutor salaries.
"The public defense function is under such strain that in too many places it barely functions," Booker said on the Senate floor.
Public defender recruitment and retention grew even more challenging during the coronavirus pandemic. But German of the New York County Defender Services said he already had to field questions from lawyers about whether they could remain on the job and be able to afford to purchase a home, or have children.
For all the longstanding concerns about resources and respect, there are some hopeful signs, said David Carroll, executive director of the Sixth Amendment Center, a nonprofit group that works to ensure that people accused of crimes have legal representation.
Carroll pointed to moves in states such as Michigan, which is now devoting more money to public defense — and creating structures and standards to guide attorneys for low-income people.
"I do think the past 10 years has shown the most progress from states finally understanding their responsibilities," Carroll said, even though he said many states still "have a long way to go."
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