“Why aren’t you ready?” the judge asked. “I have no counsel,” Gideon replied.

In 1963 the Supreme Court handed down the unanimous decision Gideon v. Wainwright, which famously established a criminal defendant’s right to free counsel. The Court clearly favored this outcome: they selected the incredibly experienced Abe Fortas to represent Clarence Earl Gideon against the much younger Bruce Jacob.* The states also were “ready to get on board”: twenty-two signed onto an amicus brief in support of Gideon’s right to counsel. But were the states really ready? Has the decision effectively guaranteed this right? Author Karen Houppert sought, with her new book Chasing Gideon, to take the “pulse of the country” fifty years after the decision and find out where the Gideon ruling stands.

The Gideon ruling envisioned a system of public defense far better than the haphazard and inadequate one we have today. According to Houppert, “our courts are in crisis,” and mass incarceration, caused by the war on drugs, tough-on-crime policies, mandatory minimum sentencing, prosecutorial overreaching, and pre-trial incarceration, has extended that crisis to our system of public defense. Everyone involved in the criminal justice system is acutely aware of the problems in public defense, but given high levels of public apathy, little has been done to solve these problem. Finding a solution to this apathy was a major impetus for Houppert’s work.

Houppert knows that the court system can be difficult to understand without a legal background; to make the issue of public defense more accessible and compelling, she chose to tell the story through the eyes of public defense clients. She described a young man named Sean whose public defender won his acquittal only after the judge was pressured to extend his trial date.  Prior to that extension, the defender’s caseload was too heavy to properly research and investigate the false accusations against Sean. In Washington, a 12-year-old boy was charged as a sex offender after receiving representation from a public defender who had 440 cases and expended no resources on investigation. (Washington has since made some reform efforts). Last year in New Orleans, the dearth of public defenders caused a judge to assign cases to randomly selected outside attorneys. When Houppert spoke with the insurance lawyer assigned to one of these criminal cases he said, “I’m up to my armpits in alligators with work!” Houppert concluded the profiles by reading an excerpt describing her conversation with a man who was imprisoned 27 years for a crime he didn’t commit. Houppert says, “I chose to write about people and tell stories to bring them to life, to help others understand the dire consequences… emotional response moves people to action but also provides the context, the big picture, so that people understand how to act.”

Houppert suggests that to fix this system we need to enact three major reforms. First, we need to make structural changes to a system in which judges often control and appoint the very public defenders that argue before them, creating an inherent conflict of interest. Second, we need to change the culture of public defenders’ offices that by necessity values efficiency over justice and discourages complaining about over-work. Third, we need to address the vast funding disparities that leave our system nearly 7,000 public defenders short (under an optimistic estimate) of how many cases a public defender can reasonably handle at one time.

In some states, clients and public defenders have initiated class action lawsuits to achieve these ends, and in others funding mechanisms have been addressed through legislative action. However, in most places the system remains inadequate and is increasingly so. To really address these fundamental problems in public defense, a multi-level campaign is required that involves both the public and the federal government. Houppert wrote her book to increase public understanding of the issues of fundamental fairness that are at stake. She believes law students and lawyers can further this goal by talking to our friends and colleagues using regular, non-legal language.

This post is based on Houppert’s talk at Harvard Law School on October 17, 2013.

*A transcript and recording of Fortas’ powerful argument in support of Gideon’s right to counsel can be found at Justice Douglass called this argument probably the best he heard during his 36 years on the Supreme Court.

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