March 18th marks the 60th anniversary of the U.S. Supreme Court’s Gideon v. Wainwright decision, a landmark 1963 ruling that guaranteed the right to counsel for individuals facing serious criminal charges. “In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth,” read the Court’s unanimous decision.
Sixty years later, however, many people facing challenges to their liberty are still subjected to unfair and inequitable practices because of their financial status. While advocates and public defenders are using this opportunity to celebrate the concept of early and effective public defense, they are also making the case that the country must urgently do more to fully realize the promise of Gideon.
“I think it is one of our highest ideals we have yet to live,” said David Carroll, executive director of the Sixth Amendment Center (6AC), a nonpartisan organization focused on guaranteeing the right to counsel.
A Transformative Case
In 1961, Florida resident Clarence Earl Gideon was facing charges for breaking and entering. The judge refused to appoint him a lawyer, citing case law at the time that limited the right to counsel to defendants charged with capital crimes. Gideon was found guilty and sentenced to five years in prison. Without a lawyer, he challenged his sentence on his own, arguing that the judge’s decision to deny him counsel violated his constitutional rights. On March 18, 1963, the U.S. Supreme Court ruled in Gideon’s favor, finding unanimously that all people charged with a felony must be afforded a lawyer, regardless of their ability to pay. In a subsequent ruling, the Supreme Court further clarified that the right also applies to all misdemeanors where there is the possibility of incarceration.
The implications of the Gideon decision are considerable. Roughly 80% of people charged with a crime cannot afford to pay for a private lawyer and rely on an appointed attorney or public defender to represent them. However, when the Supreme Court ruled in favor of Gideon, it mandated that state governments were in charge of the provision of indigent defense. In turn, many states delegated this responsibility to their counties. In Michigan, for example, a commission found that the state’s public defense system was an “uncoordinated, 83-county patchwork quilt.”
While some jurisdictions are attempting to repair the foundations of their indigent defense systems, there are still thousands of people who go to jail each day without ever talking to a lawyer. In part, that’s because indigent defense is not keeping up with demand. As 6AC documents, state and local governments spend around $6.5 billion on public defense each year. By contrast, the country spends $82 billion on corrections and $123 billion on policing.
Similarly, many states and localities invest heavily on prosecution without similar support for public defense. For example, Governor Kathy Hochul in New York recently allocated tens of millions in new funding for prosecutors. Public defenders did not receive the same amount of funding and are now urging Hochul to match their budget.
“Public defenders are dealing with this conversation of trying to justify or really show the importance of themselves as system players as compared to their prosecution counterparts,” said Monica Reid, senior director of advocacy at the National Association of Criminal Defense Lawyers (NACDL). “There’s this conversation that needs to happen about what we can do around the anniversary to lift up the benefits and the need for adequately resourced public defense systems.”
Commitment to Reform
Recognizing the pervasive issues with indigent defense since the Gideon ruling, in 2021 Arnold Ventures launched its public defense portfolio. Since then, the organization has invested nearly $10 million in projects aimed at improving and expanding access to quality public defense.
“Over the past six decades there has been tremendous progress on ensuring that all people facing serious criminal charges have access to an attorney regardless of their financial status, but significant challenges remain,” Ezekiel Edwards, vice president of criminal justice at AV, said. “There is a pressing need for continued commitment and innovation by state and local governments in order to not only abide by the constitution, but also to reduce the individual, community, and fiscal harms of unfair and inequitable pretrial detention and incarceration that are associated with the lack of access to effective counsel.”
There is a pressing need for continued commitment and innovation by state and local governments in order to not only abide by the constitution, but also to reduce the individual, community, and fiscal harms of unfair and inequitable pretrial detention and incarceration.Ezekiel Edwards vice president of criminal justice at Arnold Ventures
One grantee NACDL, which was established in 1958, a few years before the Gideon case was decided. NACDL has endeavored to create a fairer and more just criminal legal system by advocating for reforms to boost public defense. In many jurisdictions, one of the consequences of inadequate funding for public defense is that individuals are not provided counsel for events early in their criminal proceedings such as arraignments. Because the U.S. Supreme Court does not require defendants to be represented at that stage, many jurisdictions leave them to face the judge alone. This approach disproportionately harms Black and Brown defendants, who are more likely to be jailed pretrial or have to pay for their release, often while waiting weeks or months to meet with their lawyer.
To help tackle the issue, NACDL has partnered with RTI and the Virginia Pretrial Justice Coalition to study the impact of assigning counsel for an individuals’ first appearance before a judge.
“This project is an opportunity to really explore what it means to have a lawyer, to have that lawyer engaged early and have them actively working on your case from the very start,” said Bonnie Hoffman, NACDL’s director of public defense reform and training. Along with the study, the coalition will undertake a multi-site listening tour to learn from impacted people about the effects of the pretrial system and create an education campaign flagging the consequences of absence of representation.
The NACDL project will build on a growing body of evidence on the benefits of early access to counsel. For instance, last year, the RAND Corporation released favorable results from its year-long, AV-supported study on the impact of counsel at bail hearings in Allegheny County, Pennsylvania, which is home to Pittsburgh. Researchers found that the presence of public defenders at those hearings decreased the use of monetary bail and pretrial detention without increasing failure to appear rates.
Those results suggest that states and localities should invest in hiring more public defenders to work first appearance hearings.
“If there’s uncertainty about the impact of public defenders at bail hearings, people may be hesitant.” said Shamena Anwar, a RAND researcher. “There was some skepticism about whether having a lawyer there would actually help defendant outcomes, given that bail hearings tend to be very short, assembly-line hearings. So I think it’s useful to be able to provide the jurisdictions with evidence of what the impact might be so they can make an informed decision on whether to implement the policy.”
In the future, Anwar is hopeful that other researchers will build on RAND’s study by not only examining the effects of public defenders on the use of bail and pretrial detention, but also the impact of early counsel on overall case outcomes.
The National Legal Aid and Defender Association (NLADA), another AV grantee in its public defense portfolio, is also working to strengthen access to counsel by studying the increased use of video communication and proceedings in the criminal legal system.
“We’re talking solely with impacted folks because they are so often left out from these conversations even though they are a significant stakeholder,” said Alison Bloomquist, NLADA’s vice president for strategic alliances and innovation. “And so that’s an access to justice question: Is Gideon fulfilled when you’re looking through a video camera?”
NLADA also has a Racial Equity Initiative that is aimed at dismantling racial inequities that plague the criminal legal system. Through this initiative, the organization has supported anti-racism trainings for public defender and prosecutor offices. NLADA has also been working to reimagine how public safety is defined and discussed. In particular, the American Council of Chief Defenders, an NLADA member section, has been looking at what role public defenders play in this conversation. The Black Public Defender Association, another NLADA member section, is also doing participatory research in Chicago around what safety means within the Black community and among Black Defenders.
“Public defenders believe that we need to be a part of that conversation,” said Bloomquist. “But to do that, we need to be in the community and hearing what communities are really thinking instead of letting the narrative be completely controlled by policymakers.”
Meanwhile, 6AC, another AV public defense grantee, is working to provide technical assistance and evaluation services for indigent defense around the country. For instance, 6AC partnered with Michigan stakeholders to create a state-wide indigent defense commission to develop, monitor, and enforce public defense standards. One of those standards is providing lawyers at an individual’s first appearance. Prior to reforms, the state spent $0 on public defense at the trial court level for a decade. Now, it’s spending more than $130 million each year.
The work of public defenders may be in the representation of an individual client, but their work to stand up against the machinery of the government benefits the whole community.Bonnie Hoffman director of public defense reform and training at National Association of Criminal Defense Lawyers
6AC has also worked with governments in Idaho, Nevada, and Utah, among others to build similar systems and expand funding for indigent defense. In 2022, for instance, Idaho Governor Brad Little signed a bill that shifted the responsibility of funding public defense from counties to the state government – paid for by sales taxes (rather than local property taxes). “Providing adequate public defense is guaranteed in the Idaho Constitution,” Senate Majority Leader Kelly Anthon (R‑27) explained at the time. “Establishing this consistent funding source for public defense while reducing property taxes is a huge win for Idahoans from all walks of life.”
“It’s really about working with them to craft services that are specific to their jurisdiction while also meeting the decades of the Supreme Court case law on the Sixth Amendment,” said Carroll. “I use the analogy if someone were to inherit a family home, they’re not responsible for all the problems that are there in the home but when they invite someone in like us to do an assessment, they have all the information, they can raze the house to build over it, they could try to repair the cracked foundations and faulty wiring. Or they can ignore it. But if they ignore it in the future, that’s an injustice.”
Promising Steps
Despite the continued challenges to the administration of indigent defense, advocates are quick to point out that public defenders are to thank for identifying many problems that would otherwise go unnoticed given the immense scale and power of the government. Earlier this year in New Orleans, for example, the criminal court stopped trials after public defenders pointed out that people convicted of crimes were illegally being automatically excluded from serving on juries.
“That’s one of the important roles of a public defender, to stand as a check against the power of the government,” said Hoffman of NACDL. “The work of public defenders may be in the representation of an individual client, but their work to stand up against the machinery of the government benefits the whole community. Anyone at any time could face accusations from the government and everyone needs and deserves a skilled, zealous, and committed advocate by their side to bring some balance to that fight.”
