Reflections on the Right to Counsel After More Than Fifty Years

Reflections on the Right to Counsel After More Than Fifty Years

Norman Lefstein*

The full text of this article can be found in PDF form here.

The title of this article is likely understood as a reference to the U.S. Supreme Court’s decision in Gideon v. Wainwright, decided more than fifty years ago, in 1963. While “Fifty Years” does refer in part to Gideon, my title has a double meaning. Six months after Gideon was decided, I accepted my first criminal court appointments to represent defendants unable to afford counsel. Since 1963, I have worked in various capacities studying criminal and juvenile public defense systems. These efforts have included drafting American Bar Association standards for providing defense services and preparing national reports and other publications dealing with the defense of accused persons unable to hire a lawyer.

One of my favorite John Lennon songs is “Imagine,” which includes the well-known lyric, “you may say I’m a dreamer.” Well, I have dreamed a lot about what state court public defense systems in the United States would look like if we could start over based on what we know now about providing adequate defense services for the millions of persons who cannot afford their own lawyer. If this were possible, I am confident public defense would not look like it does today in most of the country. So, in this brief essay, I discuss my dreams as I imagine public defense programs as I wish they were, not as most actually are.

I. ORGANIZATION OF STATE PUBLIC DEFENSE PROGRAMS

First and foremost, public defense services would be organized on a statewide basis and the program overseen by an independent, non-partisan commission that would adopt appropriate enforceable standards. At a minimum, the commission’s standards would deal with attorney performance, qualifications to provide representation, supervision of public defenders and private lawyers, and would address the workloads and supervision of all lawyers providing defense services. In addition, the funding for public defenders and private lawyers would be adequate, and sufficient support staffs
of “experts, investigators, social workers, paralegals, secretaries, technology, research capabilities, and training” provided. Funding for the defense program would be substantially from the state’s general revenues rather than derived from fees paid by poor persons or from unstable sources of funding.

One of the commission’s primary goals would be to assure that the same quality of defense representation is provided throughout the state so that there are not major differences among local jurisdictions. Absent a statewide defense program, we know from experience that there will be significant differences in the quality of representation provided throughout the state’s governmental subdivisions.

More than fifty years since the Gideon decision, still less than half the states have independent commissions with complete oversight of the state’s public defense services. According to a chart prepared by the Sixth Amendment Center, the exact count appears to be nineteen states, most of which provide, as in Missouri, 100% of the funding from the state’s general revenues. However, in Missouri, as in many of the nineteen states, the funding is insufficient to mount a strong public defense program that ensures quality representation for accused persons throughout the state.

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 *Professor of Law and Dean Emeritus, Indiana University Robert H. McKinney School of Law; LL.B., 1961, University of Illinois; LL.M., Georgetown University Law Center.