Getting Real About Gideon: The Next Fifty Years of Enforcing the Right to Counsel

Table of ContentsI. Introduction 1310II. Fifty Years of "Crisis" 1312III. What We Should Celebrate and Sustain 1315A. The Development of Professional Standards 1316B. The Development of the Collateral Consequences Doctrine 1319C. The Trend Toward Data-Driven Analysis and Advocacy 1322IV. The Next Fifty Years of Enforcing the Right to Counsel 1325A. Diversion and Decriminalization Should Be Pursued . . . and Might Even Be Achievable 1326B. Surgical Litigation Is Better than Systemic Litigation 1330C. The Defense Community Needs to Embrace Nonlawyers as Guardians of the Right to Counsel 1335V. Conclusion 1344I. IntroductionIn the last five decades, the Supreme Court has consistently expanded the scope of the Sixth Amendment right to counsel.1 Not only must states provide counsel to poor criminal defendants in serious cases,2 but states also must provide counsel to any defendant facing potential jail time,3 to minors in delinquency proceedings,4 and to defendants who appeal their state court convictions on direct appeal.5 Moreover, and perhaps most significant, the Court has held that state-funded lawyers must be effective in all of these contexts and during the plea-negotiation process.6 In recent years, the Court has added new dimensions to this latter requirement.7 For example, in death penalty cases, lawyers must meet a heightened standard of practice,8 and at least in some instances, lawyers for the poor must understand the collateral consequences that flow from a criminal conviction and advise clients accordingly.9 While the Court has continued to expand the contours of the right to counsel since its landmark decision in Gideon v. Wainwright,10 even the most basic understanding of the right to counsel has never been fully implemented on the ground. From the start, states have failed to fand the indigent defense function adequately, and as the volume of criminal cases has grown over the years, too few lawyers have faced ever-increasing workloads.11 The result has been what many have called "assembly-line justice"-in other words, egregious and persistent violations of the right to counsel.12 These violations have not gone unnoticed by academics and defenders. In the last fifty years, there have been significant efforts to document the indigent defense crisis and to correct it.13 Yet- despite countless reports and articles detailing the crisis, state and federal court litigation, and attempts at legislative reform- the right to counsel remains illusory for most poor criminal defendants.As we mark the fiftieth anniversary of Gideon, in this Article I argue that we can and should be more realistic in our efforts to enforce the right to counsel. Assuming, as many now do, that five decades of resource-starved indigent defense will likely continue in the future, where are our efforts most effectively deployed in the years to come? I address that question in three parts. Part II briefly acknowledges the entrenched crisis in indigent defense that is as old as the Gideon decision itself. Part III examines the most salient reform efforts of the last fifty years, highlighting those that have made a lasting impact on the provision of indigent defense services. Part IV suggests that some efforts of the last five decades need to be de-emphasized to make room for efforts that are achievable and imperative in the near term. In particular, I suggest that defenders need to seize upon this political and economic climate and pursue diversion and decriminalization; that systemic litigation should be rare and only a measure of last resort; and that the defense community needs to explore the role that nonlawyers can play in protecting the rights of criminal defendants.II. Fifty Years of "Crisis"Scholars and practitioners have documented extensively the ongoing crisis in indigent defense services over the last five decades.14 As I have discussed in prior works, there are as many factors contributing to the indigent defense crisis as there are symptoms of it. …