GIDEON’S PROMISE – GIDEON’S PROMISE – IS IT BROKEN?IS IT BROKEN?

““A society should not be judged on how it A society should not be judged on how it treats its outstanding citizens but by treats its outstanding citizens but by

how it treats it criminals.”how it treats it criminals.”Fyodor DostoevskyFyodor Dostoevsky

““The poor man charged with crime has no The poor man charged with crime has no lobby. Ensuring fairness and equal lobby. Ensuring fairness and equal treatment in criminal trials is the treatment in criminal trials is the

responsibility of us all.”responsibility of us all.”Attorney General Robert KennedyAttorney General Robert Kennedy

Historical ContextHistorical Context

1963:1963: Gideon v. WainwrightGideon v. Wainwright

1971:1971: President Nixon Declared “War on President Nixon Declared “War on Drugs”Drugs”

1975:1975: Baxter v. Rose – criminal Baxter v. Rose – criminal defendants defendants have have the right to the right to effective assistance effective assistance of counsel.of counsel.

1984:1984: Strickland v. WashingtonStrickland v. Washington

1985:1985: Ake v. Oklahoma – right to Ake v. Oklahoma – right to resources.resources.

Example: Incarceration rates in the United States, Example: Incarceration rates in the United States, from 1980 to 2009:from 1980 to 2009:

•• Total numbers of persons incarcerated increased Total numbers of persons incarcerated increased from ~ 500,000 to over from ~ 500,000 to over 2.3 million 2.3 million (>4x increase)(>4x increase)

•• Incarceration rates increased from ~ 200 to Incarceration rates increased from ~ 200 to 750 750 per 100,000per 100,000 (>3x increase) (>3x increase)(More than 1 out of 100 adults are incarcerated)(More than 1 out of 100 adults are incarcerated)

•• Total persons under judicial supervision increased Total persons under judicial supervision increased from ~from ~1.8 million to over 1.8 million to over 7.3 million 7.3 million (>3x increase) (jail, (>3x increase) (jail, prison, probation, parole)prison, probation, parole)

Since Gideon, the size of our Since Gideon, the size of our criminal justice system has criminal justice system has mushroomed.mushroomed.

The criminal justice system is focused The criminal justice system is focused on the poor, people of color, and the on the poor, people of color, and the mentally ill.mentally ill.

75% to 85% of all criminal defendants are 75% to 85% of all criminal defendants are indigent.indigent.

Black male youth have 32% chance of Black male youth have 32% chance of serving time (Compared to 6% chance for serving time (Compared to 6% chance for white male youth).white male youth).

Approx. 20% of inmates have been Approx. 20% of inmates have been diagnosed with mental health problems; diagnosed with mental health problems; andand

Approx. 50% exhibit symptoms of mental Approx. 50% exhibit symptoms of mental health problemshealth problems

(per Bureau of Justice Statistics)

Expenditures on Expenditures on criminal justice have criminal justice have

increased.increased.

Bureau of Justice StatisticsBureau of Justice StatisticsKey Facts At A GlanceKey Facts At A Glance

Local governments spend more on criminal justice than state governments Local governments spend more on criminal justice than state governments or the federal government.or the federal government.

Source: Source: Justice Expenditure and Employment ExtractsJustice Expenditure and Employment ExtractsNote: Does not include intergovernmental expenditures such as federal grants; but Note: Does not include intergovernmental expenditures such as federal grants; but

these dollars are included as direct expenditures by the recipient government when these dollars are included as direct expenditures by the recipient government when they are spent for salaries, supplies and so on.they are spent for salaries, supplies and so on.

Bureau of Justice StatisticsBureau of Justice StatisticsKey Facts At A GlanceKey Facts At A Glance

Direct expenditure for each of the major criminal justice functions Direct expenditure for each of the major criminal justice functions (police, corrections, judicial) has been increasing.(police, corrections, judicial) has been increasing.

Source: Source: Justice Expenditure and Employment ExtractsJustice Expenditure and Employment Extracts

Expenditures on Expenditures on indigent defindigent defense haveense have

not kept pace.not kept pace.

Example: Attorney fees for appointed counsel.Example: Attorney fees for appointed counsel.

Rule 13: Rule 13:

Noncapital CasesNoncapital CasesRule 13: Rule 13:

Capital CasesCapital CasesCivil: Civil:

Market RatesMarket Rates

$40/hr (out-of-$40/hr (out-of-court)court)

$50/hr (in-court)$50/hr (in-court)

$3,000 total $3,000 total maximum for maximum for felonies (other than felonies (other than 1st degree murder)1st degree murder)

$75/hr (lead, out-of-$75/hr (lead, out-of-court)court)

$100/hr (lead, in-$100/hr (lead, in-court)court)

$60/hr (co, out-of-$60/hr (co, out-of-court)court)

$80/hr (co, in-court)$80/hr (co, in-court)

Experienced, skilled Experienced, skilled attorneys:attorneys:

$250/hr - $400/hr$250/hr - $400/hr

In some cases: In some cases: $450+/hr$450+/hr

Tenn.S.Ct. Rule 13 Attorney Fees vs. Market Rates in Civil Cases

A huge disparity of resources exists in A huge disparity of resources exists in the prosecution and indigent defense the prosecution and indigent defense functions in Tennessee.functions in Tennessee.

Prosecution function: Prosecution function: >$130+ million + “in kind” services>$130+ million + “in kind” services

Defense function: Defense function: ~$57 million~$57 million

From The Spangenberg Group (June 2007)

Gideon’s Broken PromiseGideon’s Broken Promise““The testimony presented by witnesses at ABA The testimony presented by witnesses at ABA

SCLAID’s hearings clearly revealed that Gideon’s promise of SCLAID’s hearings clearly revealed that Gideon’s promise of effective legal representation for indigent defendants is not effective legal representation for indigent defendants is not being kept. Far from ensuring that individuals are afforded a being kept. Far from ensuring that individuals are afforded a meaningful right to counsel, current indigent defense meaningful right to counsel, current indigent defense systems often operate at substandard levels and provide systems often operate at substandard levels and provide woefully inadequate representation. Witnesses described woefully inadequate representation. Witnesses described programs bereft of the funding and resources necessary to programs bereft of the funding and resources necessary to afford even the most basic tools essential for an effective afford even the most basic tools essential for an effective defense. defense. As a result, literally thousands of accused As a result, literally thousands of accused poor persons who are unable to afford counsel poor persons who are unable to afford counsel routinely are denied, either entirely or in part, routinely are denied, either entirely or in part, meaningful legal representationmeaningful legal representation..””

A Report on the American Bar Association’s Hearings on the Right to Counsel in Criminal Proceedings, American Bar Association Standing Committee on Legal Aid and Indigent Defendants (December 2004)

Problems identified by the ABA Problems identified by the ABA report on the right to counselreport on the right to counsel

1. Lack of adequate funding:1. Lack of adequate funding: Inadequate attorney compensationInadequate attorney compensation Excessive caseloadsExcessive caseloads Lack of essential resourcesLack of essential resources Lack of trainingLack of training Undue restrictions on eligibility for Undue restrictions on eligibility for

indigent defense resources.indigent defense resources. Resource disparity between prosecution Resource disparity between prosecution

and indigent defenseand indigent defense

Problems, continuedProblems, continued

2. Inadequate legal representation:2. Inadequate legal representation: ““Meet ‘em and Plead ‘em” lawyersMeet ‘em and Plead ‘em” lawyers Lack of continuity in representationLack of continuity in representation Incompetent and inexperienced lawyersIncompetent and inexperienced lawyers Lack of investigation, research and Lack of investigation, research and

zealous advocacyzealous advocacy

Problems, continuedProblems, continued3. Structural defects:3. Structural defects:

Lack of independenceLack of independence Absence of oversight to ensure uniform qualityAbsence of oversight to ensure uniform quality Detention without lawyerDetention without lawyer Encouraging waivers of right to counsel and Encouraging waivers of right to counsel and

subsequent pleas of guiltysubsequent pleas of guilty Inordinate delays in the processInordinate delays in the process Lack of private bar participationLack of private bar participation Lack of data regarding indigent defense systemsLack of data regarding indigent defense systems

““The bar has not enjoyed prerogatives; The bar has not enjoyed prerogatives; it has it has been entrusted with anxious responsibilitiesbeen entrusted with anxious responsibilities.. One does not have to inhale the self-One does not have to inhale the self-adulatory bombast of after-dinner speeches adulatory bombast of after-dinner speeches to affirm that all the interests of man that are to affirm that all the interests of man that are comprised under the constitutional comprised under the constitutional guarantees given to ‘life, liberty and guarantees given to ‘life, liberty and property’ are in the professional keeping of property’ are in the professional keeping of lawyers. lawyers. It is a fair characterization of the It is a fair characterization of the lawyer’s responsibility in our society thatlawyer’s responsibility in our society that he he stands as a shield in defense of right and to stands as a shield in defense of right and to ward off wrongward off wrong.”.”

Schare v. Bd. Of Bar Examiners, 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring)

Matt Sweeney:Matt Sweeney:

615-726-5774615-726-5774

msweeney@bakerdonelson.com