It is universally acknowledged that the 1960s were good years for criminal defendants. The Warren court, subscribing to a philosophy of constitutional incorporation, bright-line rules and prioritizing accuracy over efficiency, provided defendants with a series of constitutional rights which would be chipped at by the post-Warren courts for many years afterwards. The right of rights – a right as well as a tool to achieve other constitutional rights – was the right to counsel, affirmed in Gideon v. Wainwright, and later (in Argersinger v. Hamlin and in Scott v. Illinois) more narrowly defined as to include any situation of “actual imprisonment”. Those of you seeking some of the story behind the monumental Gideon decision, will find it in Anthony Lewis’ fantastic Gideon’s Trumpet.
The Dark Side of Gideon
By making the decision applicable against the States, the Warren court did more than intervene in State systems of values; it intervened with their budget. It required the states to come up with good strategies to provide subsidized representation for indigent defendants. An important rationale behind this decision was the wish to generate more equality between defendants of different classes. One way of doing so was through creating Public Defender offices around the country, though not all states did so, and some chose to work with contracting and retainer systems.
The dark side of providing broad, free legal services has to do with the quality of service. Research in the 1960s and 1970s was not oblivious to this fact, and was notably skeptic about the quality of representation offered by public defenders to indigent clients. Abraham Blumberg compared such representation to “a confidence game”, in which the public defender, in cahoots with other members of the “courtroom workgroup”, “cons” the client into agreeing to plea bargains, thus making the system run more soothly and efficiently. The recently and sadly deceased David Sudnow, in a no-less classic and more systematic study, shows how defense attorneys assess the extent to which a specific case is a “normal crime”, which can be “sold” as such to the prosecution for a preset tariff. Newer studies, such as Debra Emmelman’s 1996 article and her subsequent book, Justice for the Poor, had a more positive and less cynical perspective on legal services to indigents; however, Emmelman points out to the lack of resources faced by lawyers in these situations.
And, indeed, with no resources, institutions that provide ample representation cannot guarantee quality representation. Just a few months ago, the New York Times reported on several Public Defender offices around the nation who had refused to take on new cases, being unable to properly and adequately handle the load they faced.
These budgetary problems have come to haunt the Bay Area as well. As reported in today’s Chronicle, the San Francisco Public Defender, Jeff Adachi, is reporting a dire lack of resources, and arguing that if the office does not get two more paralegals, some cases will need to be referred to firms outside the office. This bothers me profoundly not only as someone who cares about the criminal justice system, but also as an educator who prepares public-interest-minded students for, among other vocations, careers in public defense. This year, scores of bright, talented, and hardworking students will graduate from top law schools, and many of those who seek public defender careers will find themselves working temporary hourly-paid jobs, or, worse, unpaid clerkships.
The system is not only bankrupt where prisons are concerned; it is bursting at the seams in other stages of the criminal process. Here’s hoping that things get better sooner rather than later.