The Silence of Gideon

Fifty years ago today, the United States Supreme Court issues its ground-breaking decision in Gideon v. Wainwright, holding that an indigent defendant in a criminal trial has a fundamental right to counsel. Yet 50 years later, we find ourselves still waiting for the promise Justice Hugo Black made to Clarence Earl Gideon to be kept.

In anticipation of this day, a great many thoughtful articles have been written about the failure, chronicling courts today where defendants are routinely denied competent counsel, whether for the lack of any counsel at all, counsel sufficiently interested to be competent or counsel capable of being competent while carrying massive caseloads. Andrew Cohen wrote a brilliant piece for The Atlantic, and even the  New York Times captured the despair of the empty promise.

Listening in on a press briefing last week to Jonathan Rapping, head of Gideon’s Promise, formerly the Southern Public Defender Training Center, he noted that the empty promise can be attributed to a lack of funding, political will and systemic concern, all of which are clearly true.

It struck me that the failure of Gideon’s promise, as reflected in Rapping’s three roots, comes from one common source: the American public lacks any recognition that it is their rights, their life, at stake.

As the pseudonymous Gideon has pounded home at A Public Defender, every person in this nation is a mere unlucky step away from arrest and prosecution. We are a nation of overwhelming criminalization, committing three felonies a day, with an  incarceration rate dwarfing all others. Do people connect the dots? Do they care?

I asked a question of Rapping, whether there was any individual or group who spoke for the rights of indigent defendants on a national level.  He said there was not.

District attorneys have a national group. So do police. Even police chiefs have their own association, though theirs is international. Yet public defenders remain fragmented, small groups fighting daily for their survival, or individuals without any group connection at all. 

Granted, politicians rarely run for office proudly noting the endorsement of their local public defenders, though the Police Union endorsement is often displayed front and center. The reason is purely pragmatic, that voters support law enforcement, which they perceive to be meaningful to their lives. Public defense is at best an entitlement to some misbegotten poor criminal, and at worst a detrimental force in society that releases rapists and killers to harm good, hard-working, law-abiding citizens in their beds at night.

It’s not that we have lost the public relations battle, but that we have surrendered without a fight. 

Until the American people come to understand and appreciate what Gideon means to them personally, individually, and realizes that it touches their life or the life of a loved one, there will never be funding, political will or systemic concern. 

People who already share a concern for the criminal justice system may not appreciate that the vast majority of Americans neither know nor care about much of anything beyond the handful of issues that touch their daily lives. Until they, or someone they care about, finds themselves on the wrong end of an indictment, it isn’t important enough to them to take up space on the small plate of things they’re concerned about. It should be, as they learn when their luck runs out and they find themselves outraged at a system they’ve been told is the best ever created, but by then it’s too late. 

What is missing from this mix is an effort to grab the public’s heart and mind, to educate people as to the meaning of Gideon’s promise to them personally, to their children, their friends, their neighbors. Just as law enforcement has sold its merit to the public, so too must the defense of the accused poor.  Until the public shares a sense of personal need with the defense function and the representation of the poor, there will never be funding, political will or systemic concern.  The factory will continue to grind out justice as quickly and cheaply as possible, and there will no one to complain about it.

There are many leaders in the ranks of indigent defense, but no one has yet emerged as a national leader, a spokesman, a teacher. True, they are tied up in the trenches, fighting for crumbs, trying cases, trying to lighten the absurd caseloads of their offices. Who has the time to mount a larger effort when there are human beings marched in and out of courtrooms without meaningful representation?

Fifty years have gone by since Gideon. It’s time that the battle for the hearts and minds of Americans is joined. It’s time for a national coalition, a national leader, to emerge, to force the public to see that they are each a mere step away from being Clarence Earl Gideon. Until that happens, the fight in the trenches will never be on a level playing field, never be fair, never end, and the promise of Gideon will not be kept. Fifty years of silence is too long. Who will speak for Gideon?




12 comments on “The Silence of Gideon

  1. Alex Bunin

    There are plenty of charismatic leaders who speak the message you suggest, Jon Rapping and Stephen Bright being two. I have seen the HBO produced movie “Gideon’s Army” that just won at the Sundance Festival and will be televised in July. It tells the story of three PDs who were trained at Rapping’s program. Seeing them at work is more compelling than any speech. This morning I watched a Gideon Symposium at the Capitol in Austin. Although the speakers were good, the most impressive part was the ten exonerees who each spoke for two minutes about their wrongful convictions, and how they were not bitter, but only wanted justice. The stories are only really effective when they come from the persons who lived them.

  2. SHG

    Great movies that only PDs and their friends will see, charismatic leaders who speak to the choir, aren’t going to change the public’s understanding.

     

    The stories are only really effective when they come from the persons who lived them.

    The stories are only really effective if the public hears them and changes its understanding of public defense.

     

  3. Ken Mackenzie

    What about the National Legal Aid and Defender Association? There is an umbrella body there.

  4. SHG

    That’s a good question. I asked Jon Rapping whether such an organization existed, and he said it didn’t. Perhaps he meant that there was no organization focused on educating the public rather than other purposes? Or maybe it would be perfect to serve as the driving force. I really don’t know.

  5. mgreen

    There’s the Defender Initiative of of Seattle Law School that is trying to initiate that conversation as best it can. But realistically … we defenders are a fairly anti-authoritarian bunch so a ‘one leader to rule them all’ might no go over well. Instead, I think defenders themselves, individually need to speak out and take control of the image of public defense. It won’t have to be monumental but rather persistent action to correct, teach and inspire those that don’t understand or misunderstand what it is that we do. It should be hard … most defenders like to talk and nowadays there a lot more means to get our voice “out” there.

  6. SHG

    Criminal defense lawyers, as a whole including PDs, have long been problem. It’s like herding feral cats. But at some point, internal squabbling over details has to give way to the more important message. Prosecutors and cops figured this out a long time ago, and it’s worked extremely well for them.  It’s time for PDs (and the defense bar altogether) to recognize this.

    Individual defenders speaking will not cut it. Nor will the Defender Initiative of Seattle Law School.  Explanations and excuses won’t change anything. The inability to understand why law enforcement has been incredibly effective in getting its message out, while the defense has failed miserably, is a core problem, and if that doesn’t change, we’ll have this same discussion when Gideon turns 100.

  7. Jack

    The word is slowly getting out there mainly through the Innocence Project. Just a couple of weeks ago, Kirk Bloodsworth was on the Colbert Report with his story of exoneration. At least some things are going in the right direction and hopefully the younger and next generations will care a little more about this than the last generation. My generation in particular are far more skeptical of the police and prosecutors than the previous generation and hopefully the blind deference to police and law enforcement that the older generation has will become a thing of the past.

  8. SHG

    I’m a huge fan of the Innocence Project and Barry Scheck’s work. But like many things, it has a down side. It has given broader attention to the conviction of the innocent, but at the same time, that often comes at the expense of the not so innocent.  In other words, as much as people have become more concerned about the wrongfully convicted, they have simultaneously become either less concerned, or remained unconcerned, about the treatment of the guilty and those who can’t “prove” innocence.

    While the need is for every defendant to be competently represented by counsel, there isn’t any real concern for those perceived as guilty, or unable (for lack of affirmative evidence) to prove their innocence.  And to push the envelope even further, even absolutely110% guilty defendants are entitled to full constitutional rights as well.  In other words, innocence is popular but irrelevant. Every person is entitled to counsel, innocent or not.  And it’s worth remembering that every person is innocent until convicted, no matter what. 

  9. Jack

    While I agree that some people may remain unconcerned with the guilty or even be further reviled by those they perceive as guilty – I believe that any time the problems with the justice system are brought to light and that the public become aware of the misdeeds of prosecutors, police, and judges support for the PD system is increased. The fact that the innocent need a defender is a powerful motive for supporting Gideon’s promise and the PD system, even if they are supporting it for the wrong, or irrelevant reasons.

    I know everything you say is 100% true, but I believe that people giving more attention to the innocent inadvertently helps out those truly guilty defendants and makes people want to ensure their rights are protected. Sure, it’s by no means ideal, but better than it was before the Innocence Project. I for one wouldn’t care so much about this if I wasn’t introduced to these problems by the Innocence Project. I certainly hope things get better in the future.

    While there are very few people who defend the truly guilty and push for the rights of prisoners, I don’t know a single person who won’t defend the innocent. Luckily, they are both vigorously defended by the same people.

  10. John Neff

    One of our local attorneys did some teaching about the law in our senior college program. But he was unable to find anyone that would talk about criminal law other than some guy who was a consultant for police departments.

    I wonder if one might have better luck with retired lawyers and judges.

  11. SHG

    I don’t mean to be harsh, but I think you’re deluding yourself. It’s not happening. Not even close.

    And there are plenty of people who defend the truly guilty. Every day.

  12. SHG

    This surprises me. I can’t imagine he couldn’t find a criminal defense lawyer happy to help.

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