By Christopher Zoukis
In the last week, several intriguing articles and editorials have been published concerning the Supreme Court’s landmark 1963 decision in Gideon v. Wainwright and the fundamental Sixth Amendment right to counsel in criminal proceedings.  The New York Times ran the story “The Right to Counsel: Badly Battered at 50,” and USA Today ran both the article “You Have the Right To Counsel.  Or Do You?” and the editorial “Gideon Case Fails to Help Indigent Defendants.”  These articles and editorials

presented the alarming crisis public defenders are currently faced with and how it is affecting indigent defendants.  This crisis is founded upon budgetary restraints, increasing workloads, decreasing legal staff (sometimes an effect of hiring freezes or forced staffing reductions), and the need to do what is right when it comes to defending indigent criminal defendants.  Since the right to counsel is such a fundamental one in our criminal justice system, it warrants a review and an analysis of what the current fiscal situation is doing to those who depend upon the Gideon ruling: indigent defendants.

Gideon: What Happened and What it Means

Before we delve into the crisis, it’s important to understand who Clarence Gideon was, what he did, and how his actions affect indigent defendants today.

Clarence Gideon was not known as a respectable sort.  In fact, before his namesake case, some might have called him a drunk and a derelict, certainly a frequently arrested individual with 5 felonies under his belt and the brag of being in jail before he was even old enough to drive.  On June 3, 1961, a pool hall in Panama City, Florida was burglarized.  Gideon, 51, was arrested and charged with the crime.  When brought to court, he asserted that he had the right to counsel.  At the time he actually didn’t, and the judge denied his request.  He was sentenced to 5 years in prison after failing to defend himself against the charges.

From prison Gideon filed written appeals.  These he drafted on plain paper with a pencil and submitted to the Supreme Court.  On March 18, 1963, the Supreme Court ruled unanimously that Gideon’s conviction was unconstitutional because of his lack of counsel.  His case was remanded to a new trial, one in which Gideon was appointed counsel.  Fred Turner, a noted private attorney was the one to represent him.  Gideon won and was set free.

Because of the Gideon v. Wainwright case, every criminal defendant is now entitled to representation regardless of their ability to pay.  Generally this representation is extended to those charged with both misdemeanors and felonies, but this is dependent upon local caseloads and policies of the public defender’s office.  The problem, though, is that with overworked and overburdened public defenders, there just aren’t the required resources to be able to represent everyone who has been charged with a crime; both misdemeanors and felonies.  As such, some indigent defendants are being turned away at the public defender’s office door.

The Public Defender Crisis

The situation which faces our criminal justice system today is one of budget reductions and constraints.  We are all required to do more with less, but at a certain point, only less can be done with less.  This is the case with the public defender’s office in Luzerne County, Pennsylvania, as with public defender’s offices across the country.

The American Bar Association presents the surprising fact that the indigent defense system represents around 80% of all criminal defendants.  The Luzerne County public defender’s office alone handles around 4,000 cases a year.  The office, which represents a county of 320,000 people, has at their disposal only 12 attorneys, 4 investigators, and 4 secretaries.  Times are so tough that one attorney doesn’t even have an office or desk; instead he is assigned the top a filing cabinet.  Personal phones and direct lines are a joke.  Even lawyers who usually have the aid of paralegals to type their briefs are now engaging in such secretarial tasks on their own.  All of it is time taken away from needed legal work, such as seeking discovery and contesting it.  The situation is so bad that one-third of the office’s lawyers have left for other opportunities.

Ed Olexa, a former part-time public defender in the Luzerne County office, was one of the attorneys to depart.  Olexa was paid $34,000 per year for part time work, 19 hours a week.  His usual caseload consisted of 150 to 170 cases, a number far in excess of the American Bar Association’s recommendation for full-time attorneys.  These cases regularly required 40 to 50 hours of his time each week, all in addition to his private cases.  In all, he was putting in around 70 hours a week.

The story told by Olexa is harrowing, but is typical of America’s overworked and overburdened public defenders.  Often, the only time he had to speak with his assigned clients was in the courtroom, while they were still in chains and handcuffs from the jail, and while the judge was handling other cases.  These hurried conversations and the official complaint were all he usually had to prepare to defend his court-appointed clients.  At times, he was scheduled to be in front of multiple judges, in multiple locations, at the same time.

The problem is articulated by Olexa when he said, “The best attorney in the world would be incompetent under those circumstances.”  If the best attorneys in the world (say, Roy Black, Alan Ellis, or Gerry Spence) would be relegated to being incompetent under such circumstances, then a real problem exists.  A problem that needs fixing.

Other public defender offices are just as bad.  In 2012, New Orleans’ public defender’s office had to lay off 21 lawyers due to exacerbated budgetary qualms.  This was almost one-third of the attorneys in the office, notwithstanding an annual case load of 13,000 felonies and 20,000 misdemeanors.  In Miami, the situation is just as grave.  Public defenders there can be expected to have a caseload of 500 felonies a year, that is, 350 more felonies per defender than the American Bar Association recommends for a full-time practice.

The Reason the Problems Persist

The factors going into the funding problems at issue are complex, but, undoubtedly, institutional bias and class considerations are involved.  Obviously reduced budgets are the acute cause of reductions in time and services offered by public defenders.  If there is a finite amount of dollars used to compensate the required lawyers, and the amount of clients goes up while the budget goes down, an untenable situation results.  This is obviously not the way to practice law.  This isn’t a proper way of showing an indigent defendant’s worth.  While an indigent criminal defendant can’t expect to have all the funds in the world to defend themselves, they should be able to expect to have the funds (and attorney’s time) that are required to put up an adequate defense.  If a usable bar of quality isn’t present, then the system itself is going to fail.

The real problem we’re seeing here is one of class.  Criminal defendants are more likely than not to come from the lower socio-economic strata and are to be people of color.  These groups are already under-represented in government.  Because of this under representation, their causes are — unfortunately — pushed down in favor of causes supported by those in power.  Since those in power either have the funds to pay for competent counsel or don’t need competent criminal defense attorneys because they don’t engage in criminal actions, the issue isn’t a significant one to them.  As such, the problem can become a genuine oversight, and not viewed with the appropriate level of appreciable importance.

What is to Come Without Reform

Regardless of what the true problem is — and irrespective of the true solutions — if nothing changes, poor defendants will continue to be treated to sub par legal counsel, more will plead guilty to simply get out of jail (regardless of guilt or innocence), and the indigent defense system will continue to deteriorate.  One day, only those charged with the most severe crimes might be afforded adequate representation.  And that would simply not serve justice.  But, then again, with over 90% of criminal defendants currently signing plea bargains, there isn’t any real justice in this day and age, either.  So, if something doesn’t happen to change the way the indigent counsel funding is conducted, then the past, present, and future of American jurisprudence will all be an abject failure.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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