Today marks fifty years since the U.S. Supreme Court held, in Gideon v. Wainwright, that anyone charged with a felony and too poor to hire a lawyer has a constitutional right to counsel at no cost. The Court subsequently expanded the right to a broader range of defendants, including anyone charged with a misdemeanor that could lead to jail time. Indigent defense systems expanded dramatically. Henry Fonda starred in the movie.
The anniversary of Gideon has been receiving a good deal of attention from mainstream media, the blogosphere, and the advocacy community, and much of the coverage suggests that since the decision things have gone downhill. “The Right to Counsel: Badly Battered at 50” reads the headline of The New York Times headlines editorial, while The Atlantic weighs in with “How Americans Lost the Right to Counsel , 50 Years After ‘Gideon.’”
Is this pessimism warranted? To be sure, much of Gideon’s promise remains unfulfilled. Not surprisingly, the great majority of criminal defendants are too poor to hire their own lawyers, and the quality of the assigned defenders who represent these defendants varies widely, with impossible caseloads the primary cause of inadequate representation. A 2012 report by the Brennan Center for Justice found that public defenders spend an average of six minutes per case at arraignments, where charges are often disposed of with guilty pleas. Some defendants are never assigned counsel at all. As budgets contract at all levels of government, indigent defense caseloads have grown far beyond what ethical standards allow. Some defender programs have seen no alternative to refusing to take new cases.
But the principle enshrined in the Gideon decision—that the Constitution guarantees at least the semblance of legal counsel before the state may incarcerate, even for a short period, someone charged with a criminal offense—remains intact and largely unquestioned. The principle may be battered in practice. The indigent defense system may cry out for drastic overhaul. But the system need not be created from scratch.
What of the civil side of the courthouse? What of parents threatened with permanent loss of custody of their children, too poor to hire counsel and forced to represent themselves against an opposing party who can pay a lawyer? What of those who face loss of a home due to botched procedures or outright fraud by faceless financial institutions that have entire law firms on retainer? What about denial of health care when one learns of a life-threatening condition? These threats are arguably much more devastating than a night or two in county jail, and yet, to the surprise of many, people who face them have no constitutional right to counsel. The U.S. Supreme Court squelched that hope in 1981 when it decided, in Lassiter v. Department of Social Services, that North Carolina did not violate the constitutional rights of a mother who had no lawyer when the state terminated her parental rights.
But the civil side of the right to counsel question is getting more attention. Not only did The New York Times profile the issue on its March 16 front page; a determined group of advocates across the country is directing attention to the harm lack of counsel in civil cases causes to both individual litigants and the court system. Now marking its 10th year, the National Coalition for a Civil Right to Counsel has worked to increase the availability of counsel as a right for low-income people in cases affecting basic human needs. Clearinghouse Review, published by the Sargent Shriver National Center on Poverty Law, has covered the work of the coalition since its inception. In 2006, for example, coinciding with the American Bar Association’s passage of a resolution in support of a civil right to counsel for low-income people in cases affecting basic human needs, Clearinghouse Review devoted its entire July-August issue to the movement for a civil right to counsel and a range of approaches to achieving the right.
In its May-June issue the Review will publish three related pieces on the topic. An article by John Pollock, Coordinator of the National Coalition, and Mary Schneider, Executive Director of Legal Services of Northwest Minnesota, will take a look back at the coalition’s work and progress. Martin Guggenheim and Susan Jacobs of the Center for Family Representation in New York will discuss advancements in ensuring representation of parents involved in the child welfare system. And retired California Court of Appeal Justice Earl Johnson, Jr., now a key player in the coalition, long-time proponent of a civil right to counsel, and pioneer of the legal aid movement as we know it today, will reflect on the meaning of Gideon for anti-poverty advocates and the evolution of his conviction about the importance of civil counsel.
Most of those seeking to improve the indigent defense system and advocating a civil right to counsel understand full well that the two rights are sides of the same coin, affecting the same communities. Lack of adequate defense to criminal charges can lead to lasting collateral consequences such as a criminal record that makes obtaining housing and employment difficult, while lack of counsel in an eviction or foreclosure proceeding can lead to homelessness and greater vulnerability to criminal charges. As we celebrate the anniversary of the Gideon decision and resolve to push for its full realization, these inextricable links should remind us how important it is, in fulfilling Gideon’s promise, not to forget people on the civil side of the courthouse.