Answering Gideon's Call Outside the Courtroom: Integrated Policy Reform Strategies to Protect the Sixth Amendment Right to Counsel - March 18, 2013

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In commemoration of the fiftieth anniversary of the United States Supreme Court decision in Gideon v. Wainwright, the Justice Programs Office (JPO) of the School of Public Affairs at American University, in partnership with the National Legal Aid & Defender Association (NLADA), the American Council of Chief Defenders (ACCD), and the Washington College of Law at American University, convened a one-day cross-disciplinary Symposium to explore the foundational role of the Sixth Amendment right to counsel within an effective criminal justice system and to address the interrelated policy issues critical to making the right a reality. The Symposium was held on March 18th - Gideon's Anniversary date - at American University.

The Symposium brought together approximately thirty-five thought-leaders representative of different sectors concerned with the quality and effectiveness of state and local justice systems, including: prosecutors, judges, defenders, sheriffs, law enforcement, legislators, law professors, researchers, justice policy stakeholders, community advocates, and others. The group was tasked with developing a blueprint for initiating a much-needed integrated policy reform agenda in public defense and criminal justice, in keeping with the Symposium's working title: "Answering Gideon's Call Outside the Courtroom: Integrated Policy Reform Strategies to Protect the Sixth Amendment Right to Counsel."

The thrust of the Symposium was to make transparent the critical systemic issues that affect all stakeholders and hinder the fair administration of justice, and have challenged the practical implementation of meaningful and effective representation as required by Gideon and the Sixth Amendment. Together, participants explored the organizational and financial challenges that have created the current problems that affect our state and local justice systems - not simply the provision of indigent defense. The day's discussions examined the contextual importance of the right to counsel and, among the many issues discussed, identified three priority issues for immediate attention:

  • Obviating the message of the 1982 U.S. Supreme Court Strickland 1 case, which set a threshold for "effective" representation that is significantly lower than national standards for quality defense;
  • Addressing the prevalence of "no counsel" pleas in misdemeanor cases 2 where substantial collateral consequences can attach; and
  • Reforming pretrial release practices, including greatly expanding pretrial release options and reducing the substantial delay in the pretrial process

Underlying each of these three priorities was the urgency for compiling basic information and data on the extent and nature of the need for indigent defense services as well as what is being provided -- comparable to the data available for law enforcement, prosecution and other court functions -- that policy makers need to assess the adequacy of current indigent defense services and plan for improvements needed. 3

Efforts will begin shortly to document Symposium deliberations into a collaborative Justice Action Plan: shared strategies that organizations and others represented can take back to their respective constituencies.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) which established a two-part test for determining a claim of ineffective assistance of counsel; a showing that counsel's performance fell below an objective standard of reasonableness and that counsel's performance gave rise to a reasonable probability that, had he/she performed adequately, the result of the proceeding would have been different. Attendees at the "Gideon" Symposium identified "Strickland" as one of the priority issues that efforts to improve the quality of indigent defense services must address.

2 The waiver of counsel by large numbers of misdemeanor defendants has been a situation widely observed by those working in local courts, although no comprehensive data is available. The Bureau of Justice Statistics surveys of jail inmates in 1989 and 1996 reporting that 28.3 percent of jail inmates charged with misdemeanors in state courts reported having had no counsel (Caroline Wolf Harlow, Defense Counsel in Criminal Cases, NCJ 179023 (Nov. 2000), at 6, Table 13). A recent national study of misdemeanor courts by the National Association of Criminal Defense Lawyers (NACDL) concluding that the real percentage was significantly higher (Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts, April 2009, at 14- 15). The issue is not only the percent of misdemeanor defendants who waive counsel but the context in which these waivers are made. The 2009 Report of the National Right to Counsel Committee noted that "[a]lthough courts usually claim to offer counsel to those eligible, the way in which the offer is made and the procedure for obtaining a defendant's waiver of counsel often undermines the right itself" (National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, April 2009, at 88). The report notes that in many jurisdictions, the right to counsel is not fully explained, is not explained at all, or is explained to large groups of defendants, rather than individually to each defendant (Id. at 88-89). Similarly, the NACDL report noted:

"Time after time, courts made clear to defendants that they must waive counsel to proceed. There were no inquiries into the education or sophistication of the defendants and very few efforts to warn defendants regarding the dangers of self- representation or the kind of assistance that counsel could provide. Often the waiver was incorporated into the first part of the proceeding and was presented as a rhetorical, compound question directed at whether the defendants wanted to dispose of the case quickly." ( Minor Crimes, at 14-15).

3 See e.g., Fabelo, Tony, What Policy Makers Need to Know to Improve Public Defense Systems, Papers from the Executive Session on Public Defense, Harvard University (December 2001) ("[t]wo serious obstacles to improving public defense systems are the lack of data and lack of systemic policy analysis that state policymakers need to address the relevant issues concerning public defense. Examination of the limited literature in this area reveals the lack of empirical research relevant to improving public defense systems").


Answering Gideon's Call Outside the Courtroom: Policy Reform Strategies to Protect the Right To Counsel. 50th Anniversary Symposium. March 18, 2013. American University. Agenda and Participant List

Gideon v. Wainwright: Case Materials. Compiled for 50th Anniversary Symposium: Answering Gideon's Call Outside the Courtroom: Policy Reform Strategies to Protect the Right To Counsel. 50th Anniversary Symposium. American University. March 18, 2013