This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, a decision that forever altered the landscape of the American system of justice. The promise of Gideon was clear and profound: states must provide counsel to people who cannot afford an attorney when accused of state felony charges. The court later expanded this promise to state misdemeanor charges, as well as to children in delinquency proceedings — ensuring that when governments exercise their enormous power through criminal prosecution, they also provide counsel to people unable to afford it to protect their liberties and civil rights. Yet, despite this pivotal moment in our legal history, access to public defense in the United States remains elusive and unequal.
In commemoration of the 60th anniversary of Gideon, the United States Department of Justice’s Office for Access to Justice and National Institute of Justice collaborated to sponsor a study about the current state of public defense systems across our nation. This study embarked on a national scan of various public defense models currently in use for adults in local, state, and Tribal jurisdictions. Its findings reveal a stark contrast in defense delivery models and quality of counsel across jurisdictions, underscoring the need for data-driven equitable reform to ensure meaningful access to counsel as guaranteed by Gideon.
As detailed in the study, this lack of access to counsel manifests in two broad categories: lack of access to appointed counsel and lack of access to effective appointed counsel. In terms of lack of access,
today, 60 years after Gideon, thousands of people who are eligible for state-provided counsel do not receive it. The outcome: defendants entering into uncounseled pleas, which carry serious and enduring consequences.
But even in jurisdictions where eligible people have access to counsel, quality of public defense remains inconsistent and deeply inequitable. Quality of counsel is impacted by remarkably consistent factors regardless of the delivery model: overwhelming caseloads, limited access and opportunity to confidentially confer with clients, limited resources for investigators, social workers, and paralegals, and generally poor compensation and working conditions.
However, there are glimmers of hope. Some states, including New York, Nevada and Michigan, have already begun implementing reforms that show early signs of improvement in access to and the quality of counsel. These models offer promising approaches for other states considering reforms to their public defense models in the interest of bridging the access-to-justice gap.
Looking ahead, it is essential that we continue to bring research and data transparency to bear in promoting equitable public defense reforms. Key metrics such as the percentage of people who had counsel at their initial court appearance need to be closely monitored. We must also examine how access to and the quality of counsel vary for historically underserved communities, including people of color and those residing in rural areas, ensuring that justice is truly blind and equally accessed by all.
Considering the American Bar Association-supported National Public Defender Workload Study and its updated Ten Principles of a Public Defense Delivery System, states should also be tracking quality of counsel data including caseloads, and other aspects of workload such as requests for discovery evidence, the number and duration of in-person meetings, and the appointment of experts, investigators and social workers.
Equal access to counsel is not merely a legal principle; it is at the very core of our country’s identity as a free and democratic society. But despite the mandate in Gideon and its progeny, the constitutional right to effective representation remains elusive in many corners of our nation. The path forward involves comprehensive reform, increased oversight and unwavering commitment to ensuring equitable access to counsel. As we commemorate the 60th anniversary of this landmark decision, let us recommit ourselves to fulfilling Gideon’s promise and ensuring that it becomes a reality for all. Our pursuit of justice demands nothing less.
Nancy La Vigne is director of the Department of Justice’s National Institute of Justice and Rachel Rossi is director of the Department of Justice’s Office for Access to Justice.