The Right to Counsel: Gideon v. Wainwright at 40

By Alfred P. Carlton Jr.,
President, American Bar Association President

The rule of law and the promise of justice for all Americans are principles that distinguish our country from others. This promise did not come easily, but was struggled for mightily, sometimes painfully, by dedicated citizens. On March 18, 2003, we will celebrate the 40th anniversary of the U.S. Supreme Court's ruling in Gideon v. Wainwright, establishing the right to counsel for indigent defendants in criminal proceedings. This decision caused the most significant transformation in American criminal justice history, and brought about a profound shift in social justice: recognition that every defendant, whether wealthy or poor, is guaranteed the right to counsel. At its core, Gideon is the promise of justice for even the poorest and must vulnerable citizens in our society.

Despite much progress, however, the promise of Gideon remains unfulfilled. Severe lack of funding and resources coupled with a lack of public awareness means that poor people throughout the United States are routinely denied the competent criminal defense representation that is their right under the Constitution. Nearly every state reports of inadequate or incompetent representation, often with disastrous results, such as wrongful convictions, long-term, even lifelong, prison sentences, and in some instances the death penalty. And these results affect much more than the individual defendant. The integrity of our entire criminal justice system suffers when fair justice for all Americans is but an ideal and not a reality.

The issues surrounding public defense are not only social and societal, but are also fiscal. Gideon's anniversary comes at a time when many states are struggling with great economic challenges. Communities throughout our nation are faced with providing adequate legal aid and indigent defense in an environment of dwindling financial resources and mounting legal costs.

And the sheer volume of cases is overwhelming. A study released in 2000 by the U.S. Department of Justice Bureau of Justice Statistics, which estimates that about 80 percent of all criminal defendants in state courts nationwide are indigent, reported that public defense lawyers in the nation's 100 most populous counties handled about 4.2 million cases in 1999.

Despite what could be construed as dismal circumstances, communities throughout our country remain committed to ensuring legal representation to all citizens and to finding new ways to meet this need. In this spirit, in February 2002 the American Bar Association adopted the "Ten Principles of a Public Defense Delivery System." Offered as a practical guide for governmental officials, policymakers and others charged with the stewardship of public defense systems, this simple document outlines what the ABA identifies as the fundamental criteria necessary for the provision of effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford a lawyer.

It is tempting, when we as individuals and communities are called on to make already-overburdened resources go even further, to allow the promise of Gideon to remain exactly that - a promissory note to be paid at a later date. But we must not allow Gideon to be honored more in the breach than in its fulfillment and realization.