Shrinking Gideon and Expanding Alternatives to Lawyers

Table of ContentsI. Introduction 1287II. Resource Constraints 1291III. Wishful Thinking and Failed Reforms 1293IV. Realistic Reforms 1296A. Putting Gideon on a Sustainable Diet 1296B. Facilitating Pro Se Litigation 1300C. Loosening Lawyers' Monopoly: Permitting Paraprofessional Practice 1304V. Conclusion 1307I IntroductionAs Gideon v. Wainwright1 turns fifty, it shows its age. One cannot exactly call Gideon a failure, as it has spread defense counsel to nearly all felony cases, as well as many misdemeanor cases.2 But it has hardly been a ringing success. Caseloads keep increasing far faster than budgets, spreading resources thinner and thinner. Underfunding and lack of support are chronic problems, stemming from political hostility or indifference to criminal defendants and the difficulty of guaranteeing funding sources, particularly ones that keep pace with steadily rising caseloads.3As a result, many defendants may have lawyers in name only, meeting with them for only five minutes-perhaps in a holding cell right before a court hearing-before being told to plead guilty at the initial appearance or soon thereafter. In the typical case, lawyers do little or no independent investigation to ferret out the truth or challenge the prosecution's version of events. Indeed, the defense may not even await the prosecution's discovery before immediately compromising on a guilty plea.4 That is Potemkin lawyering, a costly charade far removed from Gideoris vision.While in theory the Sixth Amendment requires that counsel be minimally effective,5 in practice it does not. To avoid overturning convictions in droves, the Supreme Court has watered down the definition of effective assistance of counsel under the Sixth Amendment, so any "lawyer with a pulse will be deemed effective."6 As too many cases chase too few lawyers with too little funding, the inevitable result is chronic ineffectiveness.The standard response of academics has been to lament this situation and to call for a new law or more aggressive litigation and constitutional challenges.7 Lawyers, they urge, are essential guardians of rights and the rule of law. At the same time, academics continue to favor expanding Gideon's ambit to guarantee lawyers in any number of civil cases implicating fundamental interests, such as housing, employment, or child custody.8The expansionist dream has proven to be an unattainable mirage. Gideon's problems are deep, structural ones. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. A perfunctory chat with a lawyer is little better than no lawyer at all.Moreover, the expansionist dream treats the problem simply as one of poverty. But, particularly in civil cases, the problem of lawyering is a deeper one of complexity and confusion. Even middle-class Americans have very little access to legal help, particularly ex ante, compared with citizens in many other countries.9 The American bar's monopoly is a stranglehold, preventing paralegals and other paraprofessionals from offering low-cost assistance with routine legal issues and transactions.10 And complicated substantive, procedural, and evidentiary rules make it very difficult for citizens of ordinary intelligence to navigate the system on their own. Our system, in short, is overengineered, making the law too complex and legal services too expensive for the middle class, let alone the poor.Longer-term solutions need to move in the opposite direction. Rather than expanding Gideon's ambitions and appetite to civil cases, we must shrink the universe of cases covered by Gideon to preserve its core. …