Without the right to adequate counsel, is our criminal justice system legitimate? 

The right to counsel was established 60 years ago last month in the landmark Supreme Court case Gideon v. Wainwright. The persistent failure to honor that right calls into question the legitimacy of our entire criminal justice system.

In the years since the decision, states have created indigent defense delivery systems staffed by public defenders — attorneys who work full time defending poor people accused of crimes — and by assigned counsel — private attorneys who agree to accept criminal cases assigned to them by the court. With its Gideon decision, the Supreme Court found that counsel is a necessity, not a luxury, but state legislatures have spent as little as possible on the defense of individuals accused of a crime.

By providing counsel to people accused of a crime, the hope was that we would end what the Supreme Court called “assembly line justice.” But underfunding indigent defense providers has only sped up the assembly line. The mere presence of defense counsel lends our justice system the veneer of legitimacy, while the inability of defense counsel to do the job required of them makes it rotten at its core.

States have created indigent defense systems that are ineffective due to underfunding, which limits the ability to hire and retain enough lawyers to handle the number of cases assigned. This, in turn, leads to excessive caseloads which force public defenders to triage cases and make uncomfortable decisions about which cases deserve resources and which fall by the wayside. 

Some public defender clients receive excellent representation, but others may receive little to no representation at all. Some states also limit the effectiveness of assigned counsel by paying them hourly rates that don’t even cover their overhead cost, setting limits on what they can be paid or using flat fee contracts, all making the work unprofitable. The result is a justice system in constant starvation mode, without the resources it needs to function properly.

In Wisconsin, the state public defender’s office has an internal staffing shortage due to low salaries for full-time public defenders and a shortage of private attorneys willing to take assigned cases because of low hourly rates. This has led to defendants who sit in jail for months without counsel, a practice that is now the subject of a lawsuit. 

But it’s not just Wisconsin that’s starved of resources. This stark reality is on display across the country.

In Missouri, overwhelming caseloads forced the Missouri state public defender to decline cases, something they are ethically required to do when they believe they can’t provide effective representation. Interestingly, the state’s response was not to provide the public defender with additional funding but to create a “waitlist” for representation in criminal courts, a practice that a federal court has deemed unconstitutional.

In New York, the state bar association filed a lawsuit to raise the rate paid to assigned counsel, an amount which hasn’t changed in 18 years. During that same period, the hourly rate paid to attorneys in federal court has been raised 14 times and is now double the rate paid to attorneys in New York state court.

Maine, the only state that lacks full-time public defenders and relies entirely on members of the private bar to provide representation, allocated just over $30 million to its Commission on Indigent Legal Services last year, just 0.27 percent of their overall budget, half the amount allocated to their Department of Inland Fisheries and Wildlife.

In Los Angeles, the union representing public defenders recently sent a candid letter to a county supervisor alerting them to the fact that 50 percent of members surveyed said they considered quitting due to excessive caseloads. Similarly, in Minnesota, public defenders voted to go on strike over excessive caseloads and inadequate pay.

The American Bar Association (ABA) recently released workload studies on the indigent defense systems in Oregon and New Mexico that found those states employed about one-third of the number of attorneys needed to provide adequate representation. Earlier ABA reports on the indigent defense systems in Indiana, Colorado, Rhode Island and Louisiana came to similar conclusions.

This chronic underfunding impacts far more than a few defendants here and there in our criminal courts; in fact, it impacts most defendants. More than 80 percent of defendants in our criminal courts can’t afford counsel. A direct consequence of excessive caseloads and policies that discourage zealous representation is the striking decline in the number of cases that go to trial. In our supposedly adversarial system of justice, a recent report found that 98 percent of convictions in federal court are obtained by plea. According to the National Center on State Courts, only 0.21 percent of criminal cases were tried by a jury in 2021. 

In Gideon, the Supreme Court referred to the “obvious truth” that someone without counsel would be unable to adequately defend themselves when charged with a crime. This obvious truth undoubtedly plays a part in the public’s continued support of the right to counsel as documented by a report that found an 85 percent public support rate for the establishment of national standards to provide a minimum level of resources for public defenders. Legislators across the country must also recognize this obvious truth and increase funding to indigent defense providers.

After 60 years of deliberate indifference to the right to counsel, our criminal justice system is on the verge of collapse. Only a large, overdue investment can save it and restore the noble ideal that justice shouldn’t be based on how much you can afford.

John P. Gross is a clinical associate professor at University of Wisconsin Law School and director of the Public Defender Project. He teaches courses in criminal law, criminal defense and trial practice.