“You Have the Right to an Attorney”: Revisiting the Promise of Gideon vs. Wainwright

 Educated by the plethora of cop shows exported from Hollywood each year, most Americans are familiar with the exact phraseology of the Miranda Warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” [1]. These rights, determined in the 1966 Supreme Court decision in Miranda vs. Arizona, derive from the rights promised under the Fifth Amendment, which protects against self-incrimination, and Sixth Amendment, which provides the right to counsel [2]. However, despite the Miranda Warnings suggestion that if one cannot afford an attorney, one will be provided, the notion that the Sixth Amendment requires the Court to provide an attorney in all indigent cases was only established in a case three years prior, in Gideon vs. Wainwright. 

Charged with breaking and entering, Florida state law denied Clarence Earl Gideon’s request that an attorney be appointed to represent him [3]. As a result, Gideon represented himself in Court, was found guilty, and sentenced to five years in prison. Gideon’s case was eventually appealed to the Supreme Court, which unanimously ruled that the Constitution requires states to provide an attorney to criminal defendants who cannot afford one themselves [3]. 

Over fifty years later, the United States is facing a national crisis in upholding the promise of Gideon vs. Wainwright [3]. 60% to 90% of criminal defendants need a public defender, but most publicly funded attorneys are greatly overworked and underpaid [4]. In fact, one study in New Orleans found that on average a public defender can only spend seven minutes on each case [5] . As a result, the public defender system has come to rely on plea bargains in an attempt to reduce defendants’ sentences under such time and fiscally limited circumstances [6]. In fact, this practice of “Meet ‘em and Plead ‘em” is so widespread that in 95% of cases, public defenders persuade their defendants to plead guilty [7]. For most of these defendants who cannot afford an attorney themselves, taking a plea deal offers a less risky alternative to a trial by jury, even if innocent. Perhaps most disturbingly, many underprivileged defendants often do not realize the costs that pleading guilty has outside of prison time. For instance, in the case of Eram Fae Stewart, the defendant pled guilty to delivery of a controlled substance, taking a plea deal after her attorney told her that if she went to trial, she would be facing 5 to 99 years of jail time [8]. Instead, Stewart was sentenced to 10 years probation and $1,800 in fines. Unfortunately, Stewart was not informed that by pleading guilty, she was no longer eligible for food stamps, nor federal education grants. In addition, she could not vote until two years after her 10 year probation ended. And although the charges against the other defendants who did not plead guilty were eventually dropped, Stewart still faced the costs of a guilty plea [8].

The most apparent contributor to the American public defender crisis seems to be the shortage of public defenders nationwide. Opting to become a public defender means turning down a lucrative career. For instance, in California, for every one dollar spent on the prosecution, only 23 cents is spent on indigent defense [9]. In fact, in 2007, state prosecutors received $3.5 billion more in funding than public defenders nationwide [10].

This disproportionate funding between prosecutors and public defenders has contributed to a larger crisis within the United States: mass incarceration. The United States has the highest incarceration rate in the world, with a 700% increase in its incarcerated population since 1970 [11]. With public defenders understaffed and underpaid, the practice of “Meet ‘Em and Plead ‘Em” only further contributes to this national crisis and deepens preexisting social, racial, and economic disparities. For instance, while black Americans make up only 13% of the U.S. population, they make up 40% of the U.S. prison/jail population [12].

More than fifty years after the unanimous decision handed down in Gideon vs. Wainwright, the United States’ justice system does not live up to the Sixth Amendment's promise to a fair trial and an attorney regardless of one’s economic status. In providing remedies to this failure of the U.S. justice system, two solutions in conjunction work to address both the public defender crisis and the larger problem of mass incarceration. First, increasing funding for public defense through both state and federal funding and private resources specifically addresses the problems caused by a shortage of public defenders and a general lack of resources given to public defense [13]. Second, reclassifying certain petty offenses into non-jailable offenses directly addresses the larger issue of mass incarceration in the U.S., particularly with respect to petty drug crimes [13].

The overall dysfunction of the public defense system in the U.S. illuminates an issue beyond a lack of funding that I would argue both the Sixth Amendment and Court opinion in Gideon vs. Wainwright did not anticipate: the surge of incarcerated individuals in the U.S. prison system post-1970. That is, while justice certainly requires an increase in funding for public defense, the public defender crisis seems to be a symptom of a greater disease infecting the American justice system at large.

References

[1] “What Are Your Miranda Rights?” n.d. Accessed March 8, 2021. http://www.mirandawarning.org/whatareyourmirandarights.html.

[2] “Miranda Warning.” n.d. LII / Legal Information Institute. Accessed March 8, 2021. https://www.law.cornell.edu/wex/miranda_warning.

[3] “Gideon v. Wainwright.” n.d. Oyez. Accessed March 8, 2021. https://www.oyez.org/cases/1962/155.

[4] “Gideon at 50: Three Reforms to Revive the Right to Counsel | Brennan Center for Justice.” n.d. Accessed March 7, 2021. https://www.brennancenter.org/our-work/research-reports/gideon-50-three-reforms-revive-right-counsel.

[5] “NACDL - Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts.” n.d. NACDL - National Association of Criminal Defense Lawyers. Accessed March 8, 2021. https://www.nacdl.org/Document/MinorCrimesMassiveWasteTollofMisdemeanorCourts.

[6] “Needed: A Cultural Revolution.” n.d. Accessed March 10, 2021. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2013_vol_39/vol_30_no_4_gideon/needed_a_cultural_revolution/.

[7] “The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice.” 2011. Cato Institute. June 24, 2011. https://www.cato.org/commentary/devils-bargain-how-plea-agreements-never-contemplated-framers-undermine-justice.

[8] “Four Stories - Erma Faye Stewart And Regina Kelly | The Plea | FRONTLINE | PBS.” n.d. Accessed March 10, 2021. https://www.pbs.org/wgbh/pages/frontline/shows/plea/four/stewart.html.

[9] Benner, Laurence. 2009. “The Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California.” Faculty Scholarship, January. https://scholarlycommons.law.cwsl.edu/fs/48.

[10] Lawrence, William. 2015. “The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality Note.” University of Miami Race and Social Justice Law Review 5 (1): 167–88.

[11] “Mass Incarceration.” n.d. American Civil Liberties Union. Accessed March 11, 2021. https://www.aclu.org/issues/smart-justice/mass-incarceration.

[12] Initiative, Prison Policy, and Wendy Sawyer and Peter Wagner. n.d. “Mass Incarceration: The Whole Pie 2020.” Accessed March 10, 2021. https://www.prisonpolicy.org/reports/pie2020.html.

[13] “Gideon at 50: Three Reforms to Revive the Right to Counsel | Brennan Center for Justice.” n.d. Accessed March 11, 2021. https://www.brennancenter.org/our-work/research-reports/gideon-50-three-reforms-revive-right-counsel.