Saturday, May 12, 2018

GateHouse: Funding woes put indigent defense in peril

Matthew T. Mangino
GateHouse Media
May 11, 2018
More than 50 years ago, Gideon v. Wainwright was argued before the U.S. Supreme Court. The high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.
Today, the right to counsel is firmly rooted in the American criminal justice system but the lack of funding has put competent representation at risk.
Clarence Earl Gideon was a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.
After all, the Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”
Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas, to represent Gideon. Fortas would one day take a seat on the Supreme Court.
Fortas’ argument before the court was deliberate, learned and convincing. Fortas told the court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.
More than a half-century 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 ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.
As states and local municipalities struggle with declining budget revenues, the more important issue today is how will public defenders and court-appointed counsel react to fewer dollars for indigent defense?
The right to effective counsel for indigent defense may be in peril.
When it comes to legal services, you get what you pay for and Pennsylvania, for instance, pays nothing. Pennsylvania stands alone among the 50 states in its steadfast refusal to allocate any money in the state budget for indigent criminal defense.
Instead, it is up to each Pennsylvania county to design, and pay for, a system to provide legal representation to the poor. The Pennsylvania Supreme Court has said that indigent defendants can sue for adequate representation.
Pennsylvania is only the tip of the iceberg.
Recently, public defenders across Massachusetts demonstrated against low pay — average base salary is $47,500 a year — and their lack of collective bargaining power as state employees, according to the Huffington Post.
The American Civil Liberties Union filed a class-action lawsuit against Missouri’s public-defender system.
The lawsuit is on behalf of five Missouri residents accused of a crime and involved in the state’s criminal justice system. The suit alleges that public defenders are failing to provide low income defendants with their constitutionally guaranteed right to legal counsel. According to The Atlantic, the 53-page complaint depicts an overwhelmed system in which too few lawyers are burdened with too many cases and, as a result, too little time to properly defend their clients in court.
The American Civil Liberties Union has also filed a lawsuit against the state of Nevada for allegedly neglecting the constitutional rights of low income defendants in rural counties. The suit alleges that some county judges appoint untrained, inexperienced private attorneys to defend the poor.
In the Pennsylvania case authorizing indigent defendants to sue counties to ensure that public defender’s offices are more adequately funded, state Supreme Court Justice David Wecht warned, ”[T]he level of funding provided by a county to operate a public defender’s office has left that office incapable of complying with Gideon creating the likelihood of a systematic, widespread constructive denial of counsel in contravention of the Sixth Amendment to the United States Constitution.” Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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