Wednesday, March 20, 2013

The reality of Gideon

If there is one thing we like to do in this country it's celebrate numbers. This week marks the 50th anniversary of Gideon. Of course the problem with Gideon is the Supremes didn't specify what kind of representation the indigent would get and it left it up to local jurisdictions to figure out how they would comply with the mandate.

Gideon  also failed to address what relief a defendant would have should he not feel his court appointed lawyer was providing competent and effective representation. What it means is that beggars can't be choosers - in other words, those who can afford to retain counsel can switch attorneys at the drop of a hat but that indigent defendant sitting behind bars is stuck with the one the court appointed to dance with him.

The decision also left us with a patchwork quilt of methods for appointing counsel. In Harris County alone there are some courts who appoint private attorneys to represent the indigent off a list. Other courts contract out their indigent defense. Still others utilize the services of the public defender's office.

Yesterday on Talk of the Nation was the current crisis in indigent defense. The guests were Stephen Bright of the Southern Center for Human Rights and Colorado state public defender Douglas Wilson. The clip below is from the show and is quite enlightening about the failures of our criminal (in)justice system in the 50 years following Gideon.

For those of y'all who've never practiced criminal law in Harris County, the reality of Gideon is jarring to the conscience. Each and every day in the misdemeanor courts up to two dozen men, mostly black and Latino, are placed in a holdover cell behind the courtroom. Generally each court has two attorneys designated to handle the indigent cases each day. The basic definition for indigence in Harris County is not being able to post bond prior to the initial settings (generally 48-72 hours after arrest).

The attorneys grab their files and shuffle through the paperwork. Then, sometimes before even going back to talk to their clients, they sit down with the prosecutor and try to work out pleas on the cases. Then the dog-and-pony show begins as they try to sell their "client" on the deal. There's no investigation. There's no thought to challenging the state's case. It's all about trying to get the client out of jail in the shortest amount of time.

Now I don't mean to impugn anyone's reputation and I certainly don't mean to imply that this is how every court appointed attorney in the misdemeanor courts acts.  But this is the reality of Gideon.

Then, once all the pleas are agreed to and the paperwork is signed, it's time for the parade. Defendants are brought out into the courtroom, all handcuffed to one another. There are generally at least half a dozen defendants standing before the judge - though I have seen them lined up in two rows before. The judge then begins the assembly line process and each defendant dutifully admits guilt and accepts his punishment.

They are then marched back to the holdover and the whole process repeats itself the next day. And the day after that. And the day after that...

In practical terms what Gideon has become is the gloss we use to cover up the imperfections. It's a show. There's no effective representation. It's a game to see who can clear the most cases and who can get out of jail the quickest.

The judges don't mind because it clears their dockets. The county administrators don't mind because it's cheap. And, hell, the plea papers the defendants sign already state that the defendant is satisfied with the representation he received. It's a complete fucking sham.

Over at Sentencing Law and Policy, Doug Berman had an interesting piece (well, he quoted extensively from someone else who wrote an interesting opinion column) asking whether Gideon ushered in the new era of the drug war and mass incarceration.

Now the argument strikes me as an almost doctrinaire libertarian approach to government involvement in anything - government steps in to solve a social problem, creates a moral risk and the world goes to hell in a handbasket because of it. Who's to say if these things wouldn't have happened anyway. Whether Gideon enabled them is neither here nor there. What Gideon has done, however, is put a shade of legitimacy on our government's continued war against the poor and minorities.

As a result of Gideon, our criminal (in)justice system resembles the storyline of one of the myriad of movies detailing the social breakdown in suburbia (American Beauty comes to mind). Everything is all glitzy and beautiful at first glance - but god help you if you take a closer look.

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