Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the Sixth Amendment issue of a right to counsel and the ability of public defenders to mount effective cases.
THE STATEMENT AT ISSUE:
“This case asks how indigent criminal defendants may vindicate their Sixth Amendment right [to counsel] when systemic, structural deficiencies in a state’s public defender system result in counsel being assigned in name only. In ruling those claims nonjusticiable, the [state] district court effectively held that the sole recourse to redress systemic deficiencies in Idaho’s public defense system is through piecemeal, post-conviction litigation of individual ineffective assistance-of-counsel claims. That was error.”
– Excerpt from a friend-of-court brief filed by the U.S. Justice Department’s Civil Rights Division on May 11 in the Idaho Supreme Court, arguing that individuals too poor to hire their own lawyer have a right to sue before they go to trial to assure themselves of an effective defense lawyer. The department filed a similar friend-of-court brief on the same issue last September in the Pennsylvania Supreme Court, which has not yet ruled.
WE CHECKED THE CONSTITUTION, AND…
America’s founding generation believed so strongly that the right to a lawyer was essential to human liberty that they created that right in the Constitution’s first amendments, in the Bill of Rights, ratified in 1791. But for the nation’s poor people charged with crime, that right has been a long time becoming a reality, and in many communities still is not assured.
The Sixth Amendment right to a criminal defense lawyer originally applied only in federal courts, not in state courts, where most criminal cases are pursued. It was not until 1932, in the case of Powell v. Alabama, that the Supreme Court ruled that the right applied to cases in state courts, if the case could lead to the death penalty.
Only in 1963, in the famous case of Gideon v. Wainwright, did the Supreme Court declare that the Sixth Amendment guarantees a right to a free defense lawyer for those too poor to hire their own. And it was not until 1984, in the case of Strickland v. Washington, that the Justices declared that defense lawyers had to be effective – that is, their performance had to satisfy professional standards.
And yet, more than a half-century after Gideon and three decades after the Strickland ruling, many observers – including the U.S. Justice Department – contend that the right is simply not a reality in many communities because of the severe shortage, or under-funding, of professionally competent public defender lawyers, denying their clients an adequate defense.
Even though the Strickland decision was a major step toward assuring effective defense lawyering, individuals cannot try to take advantage of that ruling until after their trial is over and they have been convicted, and then only if they could prove not only that their lawyer did not satisfy norms for the profession, but also that such lapses were so important that they made a guilty verdict almost inevitable.
The Justice Department is now engaged in a campaign to remedy those failings in criminal defense, boldly asserting that the Sixth Amendment includes an even broader right – that is, a right to be protected against “constructive denial” of the right to a defense lawyer. This right, the Department now claims, should be enforceable in civil court, before an individual who has been accused of crime is convicted in criminal court.
A “constructive denial” occurs, according to this new theory, when a state’s public defender system or its system of court-appointed private lawyers for the poor is so inadequate that defense lawyers often fail to show up for initial bail hearings before trial, have too little contact with their poor clients, do not have the time or resources to do serious investigations of the cases, do not make important motions to aid their clients, and do not have money to hire experts to join in the defense of their clients.
In Idaho, where the department is testing this theory along with a case in Pennsylvania, the argument is that such deficiencies run throughout the system of defending the poor and are the result of burdensome caseloads for public defenders, inadequate funding, poor or inadequate supervision or training, lack of independence from governing boards, and limitations on what court-appointed lawyers can be paid or what resources they can access.
The department is advocating that groups of individuals faced with such grim prospects in a state may sue together in a class action, and courts would have the power to issue orders to state and local officials to provide the necessary money and resources to assure – before trial – an adequate defense for poor clients.
That theory has worked in New York state courts, but not in Idaho or Pennsylvania, or elsewhere, because lower courts have ruled, for example, that individuals not yet convicted do not have any legal right to contest the adequacy of the defense that they may get in criminal court. In other words, they do not have a present right to sue to get such assurance.
The Justice Department contends that this is the wrong approach. The Strickland decision provides a different remedy than what the government is now seeking: that ruling is about how to judge, after the fact, whether a lawyers’ performance at the trial was adequate, while what is now being advocated amounts to about the same thing as an outright denial of a defense lawyer – period. It is, as the theory says, a “constructive denial” since the defense lawyers produced by an inadequate system of representing the poor cannot perform as needed.
The courts have had considerable experience in ordering governing agencies to spend money to correct a violation of someone’s rights – such as orders to spend money to improve the quality of education for minorities attending public schools. The Justice Department sees a similar obligation to provide an adequate system of legal defense for the poor.
Under the principles of the Gideon decision, the department has contended in its brief in the Idaho Supreme Court, lawyers for the poor “must be appointed under circumstances that permit them to do their jobs.” The right under Gideon, it added, “would be an empty formality if appointed counsel is precluded from providing his or her client any meaningful representation.”
Since this new claim is keyed directly to the meaning of the Sixth Amendment in a new context, it will be up to the Supreme Court to ultimately accept or reject it.
