Wednesday, April 10, 2013

Fulfilling Gideon's Promise

By Spike Bradford

Image courtesy Blue Mass Group / Project Legal
We have all heard the mandated Miranda warning in numerous television shows and films. Officers are required to tell accused people,“if you cannot afford an attorney, one will be appointed for you,” and we assume it to be true; that indigent defense is one of the glorious benefits of our system that so highly values equal treatment under the law. However, the reality of indigent defense is often as different as real life is from most of those shows and movies.

This week, the Brennan Center for Justice released Gideon at 50: Three Reforms to Revive the Right to Counsel
, a report describing a justice system that continues to provide poor defendants with substandard or non-existent counsel at trial and recommending several solutions to bring our courts in line with the 1963 Supreme Court ruling in the Gideon v. Wainwright case. That ruling found that accused people who are deemed unable to afford legal representation have a right to have that representation provided for them by the state, the same promise given by the Miranda warning.

Gideon at 50
asserts that the ruling basically produced an unfunded mandate that many jurisdictions have been unable or unwilling to meet. Many poor defendants—as many as 90 percent qualify for public defense, according to the American Bar Association—choose to accept unfair plea agreements or to face the court with inadequate representation. Public defenders are notoriously overworked and underpaid, often through statutes that cap their pay – we make note of this in our 2011 report, System Overload: The Costs of Under-Resourcing Public Defense. The situation has helped to feed our current historically high prison population and costs counties, states and communities dearly.

What struck me most while reading through the Brennan Center’s new report were the parallels between the state of indigent representation and what I learned about the pretrial bail system while researching and writing For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pre-trial Justice in the latter half of 2012. In both systems, those without financial means are put at a great disadvantage. They are more likely to remain in jail before trial and more likely to receive inadequate representation. Perhaps most disturbing, they are very likely to accept unfair plea agreements in order to avoid the trial process which is so obviously skewed against them. Much like the under-funded pretrial services agencies that can be effective in assessing and monitoring non-financial pretrial release, public defenders and court-appointed defenders operate with budgets that are a fraction of what prosecutors enjoy. 
The Brennan Center for Justice recommends examining changes that would reclassify many petty offenses as non-jailable or legalized, increasing the amount and diversity of public defense funding and improving training and support for public defense attorneys and other staff. These actions are a step toward fulfilling Gideon’s promise.

I recently spoke with a public defender who neatly described the prosecutorial bias in most courts today. He said, “when we go to court, we face two prosecutors. One of them wears a robe.” It is precisely this imbalance that Gideon was meant to correct 50 years ago.

Spike is senior researcher for JPI.

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