Knisely’s Second Law states that “In theory, there’s no difference between theory and practice, but in practice there is!” My First Law states “Anything that exists is possible.”
Both laws are relevant to how Americans are treated by our legal system in the wake of the Supreme Court’s decision in the Gideon case, and why I’m ecstatic that Lawrence Tribe is joining Eric Holder’s Justice Department to work on improving legal access for the poor. But that’s just my personal opinion.
The post-Gideon history of legal representation for poor defendants is an excellent example of practice obliterating theory, and of America’s inability to establish – or at minimum observe – feedback loops from reality back to policy making. This is the design-of-government issue.
The Wikipedia entry for Gideon v. Wainwright will tell you more than you need to know about the case, starting with: “…the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.” The ruling, in 1963, was unanimous. That was the law.
Ralph Temple delivered an address in honor of the 40th anniversary of the Gideon decision, in which he brought into clear focus its importance to a free people:
“Walter Van Tilburg Clark, in his book The Ox-Bow Incident, wrote: ‘True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. . . . None of man’s temples, none of his religions, none of his weapons, his tools, his arts, his sciences, nothing else he has grown to, is so great a thing as his justice, his sense of justice. The true law . . . is the spirit of the moral nature of man. . . .’
“When we enter the court, we enter the temple of justice. And that’s why the Gideon case is so important. For the right to counsel is the most important of all rights, because without it none of the other rights can be protected. In this sense, the right to counsel is the key to the temple of justice.”
But of course the right to counsel means that either (a) lawyers must be found to work for free, or (b) someone must pay them, since the defendants cannot. It also must mean some minimal standards for attorney competence, or the right is meaningless (lawyers would say moot).
Georgetown University’s Law Center (my alma mater, class of ’72) held a symposium in 2003 marking the fortieth anniversary of Gideon. The website for the National Association of Criminal Defense Lawyers, one of the sponsors of the symposium, tells the story of Gideon in practice:
• The American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants published a report, “Gideon Undone,” in 1982 (Gideon plus 19 years) clearly stating that criminal defense lawyers for the indigent were underpaid and overworked, whether public defenders, assigned counsel, or contract attorneys.
• A New York Times article in 2003 (Gideon plus 40 years) stated: “The recent spate of exonerations based on DNA tests has demonstrated that inadequate representation can, and does, lead to wrongful convictions. A Montana man, speaking at an Open Society Institute panel this month, told of spending 15 years in prison on a sexual assault charge after a trial in which his court-appointed lawyer did no investigation, hired no experts and failed to file an appeal. After 15 years, he was cleared with DNA evidence.”
(It is helpful that in 2001, the Fifth Circuit Court of Appeals finally decided that you couldn’t be put to death in Texas if your lawyer had slept through much of your trial. New York in 1996 and California in 1984 also came to recognize that sleeping lawyers weren’t much help.)
The larger problem, of course, is money. Few state or local governments have been willing, and fewer now are able, to pay for adequate numbers of public defenders or contract lawyers. And fewer private attorneys are willing to be assigned as counsel. This lack of resources is highlighted in Justice Denied, America’s Continuing Neglect of our Constitutional Right to Counsel:
“Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct. In addition, private contract lawyers and attorneys assigned to cases for fees receive compensation that is usually not even sufficient to cover their overhead and that discourages their participation in defense systems. Equally disturbing, in most places across the country there is no oversight at all of the representation that these lawyers provide, and the quality of the work they provide suffers as a result.
“In addition, defendants throughout the country, especially in the lower criminal courts, are still convicted and imprisoned each year without any legal representation at all, or are “represented” by lawyers who have hundreds of other cases (thus violating rules of professional conduct), and lack the requisite expertise and sufficient support staff, including persons who can investigate their clients’ cases. Sometimes people who cannot afford an attorney sit in jail for weeks or months before being assigned an attorney; others do not meet or speak with their lawyers until the day of a court appearance. Too often the representation is perfunctory and so deficient as not to amount to representation at all.” (page x)
We’re not talking a lot of money here – not compared with redesigning the health care system, or even with Wall Street bonuses. There really should be enough money available to let our legal system hold its head high. There are so many countries where the legal system is a sham – it’s a shame that mine is also, in so many cases involving poor people.
And what does it say about our “respect for law,” and for our system of government? The Supreme Court can be quite explicit about what the legal system requires, and yet the other two branches ignore the Court’s direction, or just give it lip service?
I used to offer free advice (I still do…) to people who worked for me, and to my kids and their friends: “Just do what you say you’ll do,” I’d say. “Don’t promise the moon, don’t promise anything by COB yesterday, JUST DO WHAT YOU SAY YOU’LL DO. And you’ll go far.”
I want to hold my country to that same standard. For both theory and practice.
“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of any country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal, …[and] the treatment of crime and the criminal mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it.”
– Winston Churchill