The Supreme Court’s 1963 ruling in Gideon v. Wainwright said that everyone gets a lawyer for their day in court, regardless of their ability to pay. The decision that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for indigent defendants was hailed as an essential step forward.
How it has worked out in actual practice was the focus of “Gideon at 50: Reassessing the Right to Counsel,” sponsored by the Washington and Lee Law Review and the Frances Lewis Law Center on November 8-9.
Catholic University law school Professor Cara Drinan was among the invited panelists. Her paper, “Getting Real about Gideon: The Next Fifty Years of Enforcing the Right to Counsel,” noted that the decision has been expanded over the years, and raised the bar for the qualifications of court-appointed attorneys.
“Based on these constitutional requirements announced by the Court, one would think that the right to counsel in America is robust and vibrant, and yet that is far from true,” Drinan wrote.
Almost from the beginning, the problem in implementing an effective right to counsel has been the failure of many states to adequately fund the effort.
“As the volume of criminal cases has grown over the years, too few lawyers have faced ever-increasing workloads. The result has been what many have called assembly-line justice—in other words, egregious and persistent violations of the right to counsel as described by the Court,” the paper explained.
What can be done? Drinan conceded that “five decades of resource-starved indigent defense will likely continue in the future,” but suggests that some litigation strategies are better than others.
“Defenders need to look for opportunities to collaborate with prosecutors in the pursuit of diversion and decriminalization; and that the defense community needs to explore the role that non-lawyers can play in protecting the rights of criminal defendants,” the professor’s paper concluded.
Washington and Lee Law Review plans to publish the scholarship presented by participants next summer.