Time to fix the representation problem

Last month marked the 50th anniversary of the U.S. Supreme Court’s ruling in the landmark case of Gideon v. Wainwright.

I have been marveling at how far we have come since the court’s decision and how far we still need to go in providing competent legal representation to those who cannot afford counsel. It also has raised many questions in my mind about the responsibility of private lawyers to provide pro bono representation and where that representation is best directed.

Clarence Earl Gideon, a Florida man, was arrested on suspicion of theft in 1961. Gideon asked the court for a lawyer but was turned down because, at the time, counsel was only available to indigent defendants in capital cases. Gideon was convicted by a jury and denied an overturn of his verdict by the Florida Supreme Court.

Gideon, from his prison cell penned an appeal to the U.S. Supreme Court. His argument that indigent state defendants be afforded legal counsel for criminal offenses under the 14th Amendment was ruled on unanimously in his favor.

The importance of that ruling cannot be underestimated in the history of criminal jurisprudence in our country. Unfortunately, since that monumental ruling our criminal justice system has grown exponentially. The demand for legal services and counsel has risen, but the supply of counsel in a position to offer their services, especially in urban areas, has not been able to meet the unprecedented levels of demand.

For example, Miami’s public defender handles 500 felonies a year, even though the American Bar Association guidelines recommend that the caseload should not exceed 150 felonies. The state of the criminal justice system in this country can vary wildly by jurisdiction. Some counties and jurisdictions have put into place legal service clinics which provide counsel from private law firms in order to support its public defender’s office.

Due to counsel being available, a defendant has the opportunity to have an attorney represent them following an arrest and, in some cases, all the way to trial. However, some areas are so underrepresented and lack the resources to provide counsel that defendants spend little time preparing a defense to their case that they just end up taking a plea. In the worst cases, a defendant does not see a lawyer to substantively discuss their case for weeks or even months.

Sadly, the absence of adequate criminal representation affects those in our country who have traditionally lacked a voice in our political system. Minorities, the poor, the mentally disabled, those with prior criminal records and the uneducated are those who suffer most from the underrepresentation.

Some in the profession have espoused the notion that it is better to be guilty and rich than poor and innocent when charged with a crime. It was when I read those words recently that I began to think about our responsibility as private lawyers to try and level the playing field. To serve not only those who hire us for our services, but something greater. To protect the integrity of the criminal justice system. To ensure that everyone gets a fair shot.

Something about those words, although arguably true, was disturbing. Some of us went to law school thinking we could change the world and make it a better place for all. Some of us quickly realized this idealistic view of the world was just that. Some of us drowned in the magnitude of the task of reforming the system and just gave up. I would be lying if I said that I have not felt the urge to ignore the problem and focus on the things I can change, the people I can help.

Yet there is a nagging feeling within me that something needs to change, that something needs to be done.

I decided to write this piece just to begin the discussion on how we, as private lawyers with a desire to help those in need, can do so. I have no illusions or delusions of being able to reform the system. However, I think that once we begin to discuss the issues we are facing in our criminal justice system, perhaps we can begin to work on change.

We all know change cannot and does not happen overnight. I do believe, though, that the state of the system can be changed if we as lawyers become more involved. It is not just criminal defendants that are being denied competent representation. Many civil defendants are also being denied proper representation due to financial restrains. Many defendants are being jailed or threatened with jail time in the civil context for delinquency proceedings, civil contempt matters or failing to pay child support.

There has been a movement in many jurisdictions toward directing private legal representation to those areas by the courts. The need for legal counsel in both the criminal and civil arenas has never been more important or needed. It is just something to think about the next time you find yourself looking to volunteer your time and services. It would be well worth it in the scope of protecting and guarding the principles our founding fathers thought important enough to delineate in the Bill of Rights and expanded through decisions from the U.S. Supreme Court.

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