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Legal aid for indigent clients desperately needs our help

By Karen Houppert
The Washington Post

In 1961, an itinerant man named Clarence Earl Gideon was accused of breaking into a pool hall in Florida and stealing some liquor, as well as money from a jukebox and a cigarette machine. He asked the judge in his burglary trial for a lawyer. He was too poor to hire one himself, Gideon said,. The judge said the state was under no obligation to provide him with an attorney. So Gideon represented himself, badly, and ended up in prison. But he fought his conviction – all the way to the Supreme Court, insisting that there was no such thing as a “fair trial” if both sides didn’t have representation.

Monday marked the 50th anniversary of the landmark Supreme Court decision in that case, Gideon v. Wainwright, which established the constitutional right to free counsel for poor people accused of serious crimes. Most Americans are familiar with this result, thanks to television and movies; police officers say as they arrest someone: “You have a right to an attorney. If you cannot afford an attorney, one will be provided for you.”

In the 1960s, complying with the ruling seemed quite possible. The number of indigent folks accused of crimes was smaller. Cities and counties established public-defender offices, staffed by salaried lawyers who were paid by the city, county, state or some combination of these; they also developed a roster of private attorneys whom judges appointed on an as-needed basis, paying an hourly rate.

It sort of worked.

But over time the war on drugs, the “three strikes” laws and the lock-’em-up mentality of politicians have led to indigent clients flooding the courts. Courts are overburdened, and across the country, lawyers for the poor are routinely buried beneath crushing caseloads and working in underfunded offices.

Attorney General Eric Holder decried the “crisis” in indigent defense when he spoke to the American Bar Association last year. Programs across the country were “underfunded and understaffed,” he said.

The problems have been well documented. A 2009 investigation by the Constitution Project, the National Legal Aid & Defender Association and the National Right to Counsel Committee concluded that the system of providing counsel for the poor was broken and that defendants’ constitutional rights were routinely violated. Their report, “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” documented instances in which public defenders carried as many as 500 active felony cases at a time (the American Bar Association recommends 150) and as many as 2,225 misdemeanor cases (the ABA recommends 400).

The recent economic crisis has exacerbated the problem. In New Orleans last year, the chief public defender had to lay off a third of his staff. Hundreds of people languished in jail for months, waiting for a lawyer to be appointed.

These shortcomings greatly affect people’s lives every day. In Washington state in 2004, a 12-year-old was accused of molesting his 5-year-old neighbor after the boys had played a game that, the younger one said, involved the older boy putting his hands down his pants. The 12-year-old’s overworked public defender advised his client to quickly plead guilty. The lawyer carried 240 other criminal cases, never spoke to a witness, hired no investigator, spoke to no experts, and failed to speak to his client alone once; the court ordered the 12-year-old to register as a sex offender for the rest of his life,. Six years later, on appeal, the state Supreme Court found that the boy’s counsel had been inadequate.

The crisis in our courts raises questions about how we as a nation define “justice.”

In the 1800s, Mark Twain joked that “the law is a system that protects everybody who can afford a good lawyer.” In many ways, unfortunately, that remains true today.

Karen Houppert is an associate professor at Morgan State University and the author of the book “Chasing Gideon: The Elusive Quest for Poor People’s Justice.”
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