CREATORS
July 22, 2025
Lawyers
are personally responsible for the quality of representation they provide.
Public defenders — those who provide criminal defense to indigent defendants —
are, like their colleagues in private practice, bound by ethical
responsibilities to limit their workloads to ensure competent representation.
More than
six decades ago, the U.S. Supreme Court decided Gideon v. Wainwright. In
Gideon, a landmark decision, it was unanimously ruled that state courts are
required to provide legal counsel for those defendants accused of a crime who
cannot afford a lawyer.
The spirit
of Wainright not only requires that an attorney be present, but that the
attorney be competent. With that in mind, public defenders with excessive
caseloads cannot give appropriate time and attention to each client. According
to a 2023 report by RAND, "Overburdened attorneys are forced to choose
cases or activities to focus on, such that many cases are resolved without
appropriate diligence."
The
Wainwright decision is recognized as one of the most important of the 20th
century. Now, more than 60 years later, is the decision falling short of its
original edict?
In
January, a Maine Court ruled that the state is violating the Sixth Amendment
rights of hundreds of people by failing to provide attorneys to people charged
with a crime. According to the ACLU of Maine, the court wrote the "Sixth
Amendment demands continuous representation in Maine from the time the right
attaches, and at all stages of the criminal process."
Private
attorneys representing indigent defendants in federal courts across the country
are either working for free or have stopped taking cases because the federal
program that pays has run out of money, reported Source NM. The funding for
independent indigent defense stopped at the beginning of July, after Congress
froze all judicial branch funding at last year's levels as part of its
continuing budget resolution.
The Sixth
Amendment provides, "In all criminal prosecutions, the accused shall enjoy
the right ... to have the assistance of counsel for his defense."
In 1932,
the U.S. Supreme Court decided Powell v. Alabama. It was ruled that the U.S.
Constitution requires defendants in capital cases to be given access to counsel
upon request.
Ten years
later in Betts v. Brady, the court refused to extend the right to counsel to
criminal charges other than capital murder. In Betts, it was held that a
refusal to appoint counsel for an indigent defendant charged with a felony did
not violate the U.S. Constitution.
Then came
Clarence Earl Gideon, 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 without funds or counsel, he asked the court to
appoint him a lawyer.
The judge
apologized to Gideon and said that Florida law only provides 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. His appeal was denied, and his
case made its way to the U.S. Supreme Court. The Supreme Court appointed a very
capable attorney, Abe Fortas, to represent Gideon. Fortas would one day take a
seat on the Supreme Court.
In his
successful argument before the high Court in 1963, Fortas adroitly pointed out
that 37 states already 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.
Unfortunately,
today, there remains a clear distinction between the defense of poor litigants
and litigants with resources. The quality of legal counsel is not the problem.
But the challenge is enormous — an unyielding workload, stagnation or loss of
funding and the disparity in access to investigators, experts and other
litigation-related resources.
The
convergence of those factors makes competent legal representation beyond the
reach of many men and women accused of a crime.
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 www.mattmangino.com and follow him on Twitter @MatthewTMangino
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