The Cautionary Instruction: Sustaining the promise of fairness and justice

The Pittsburgh Post-Gazette/Ipso Facto
January 11, 2013

This year marks the 50th Anniversary of the landmark U.S. Supreme Court decision in Gideon v. Wainwright. In Gideon, the Court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford an attorney.

The decision is recognized as one of the most important of the 20th century. At the time of the decision a substantial majority of states were already doing what the Supreme Court said the Sixth Amendment, by way of the Fourteenth Amendment, required.

Thirty-seven states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.

Fifty years after Gideon the focus has evolved from merely the right to counsel — to the right to effective representation. That representation has turned from insuring a fair trial to insuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.

The more important issue today — as states and local municipalities struggle with declining budget revenues — how will public defenders and court-appointed counsel react to fewer dollars for indigent defense?

In Philadelphia, city officials spend spends $8 to $10 million a year on conflict counsel working predominately in the criminal courts. Conflict counsel are defense attorneys appointed by the court when a conflict exists between two or more indigent defendants charged in the same case. From July 1, 2010, through June 30, 2011, there were 22,441 conflict appointments in Philadelphia courtrooms.

The city wants to contract with an office or firm that would handle the cases instead of 100s of individual attorneys. City officials say a new system could improve the defense that indigent people receive from court-appointed counsel. They may be right.

Researchers at RAND analyzed the outcomes of several thousand murder cases in Philadelphia where the public defender’s office represented some and court-appointed conflict counsel represented the remainder. Compared to the conflict counsel, the public defenders “reduce their clients’ murder conviction rate by 19 percent and lowered the probability that their clients would receive a life sentence by 62 percent.”

Attorney Sam Stretton, who has represented many court-appointed defendants, suggests Philadelphia simply wants to cut costs. “The city is not doing this to help indigents. They’re doing this because they think they can get a cheaper system. And that’s wrong.”

Several years ago, the Defender Association of Philadelphia presented compelling testimony before Pennsylvania’s Senate Judiciary Committee's subcommittee on crime and drugs. The association argued: "Public defenders, as well as private court appointed-counsel are overworked and grossly underpaid. The inevitable result of reduced funding and increased caseloads.”

Today, counties are in the untenable position of weathering difficult economic times, providing essential services to taxpayers and insuring that justice is afforded to the indigent.

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