By Judge Brian MacKenzie*
In Gideon vs. Wainwright the Supreme Court announced that the right to an attorney was both “fundamental and essential” to rule of law under the Sixth Amendment to our Constitution, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." Yet 55 years after it was decided, people are convicted of crimes every day without having an attorney to advise or represent them. Many more are convicted after meeting an attorney for the first time just moments before they enter the courtroom. In courts across this country the constitutional right to be represented by an attorney is routinely violated. It happens so often it is called “the failure of the promise of Gideon.”
But Gideon, and subsequent Supreme Court cases that followed, were not so much a promise as a description of the contours of a constitutional right. These cases require that judges, in particular, protect that right. We must pose a question to judiciary: Why have judges failed to protect this important right?
The answer to this question arises, in part, from the nature of the remedy fashioned by the Supreme Court in the Gideon case. It deferred to each individual state to construct their own methods to provide individuals with an attorney. Many states and local governments across the country, then, as now, cash strapped, saw Gideon, and the cases following it, as a set of new unfunded federal mandates. These officials saw no public support for increased spending to help criminal defendants and therefore had little reason to provide tax dollars that were needed for other programs. Courts whose own budgets were under pressure often found reasons to cut defender dollars in order to save staff positions or court priorities. Thus, the funding for public defenders remains anemic.
Another part of the answer to why judges don’t protect the right to counsel lies in the local court culture. Change is hard and without serious pressure, it is not likely that courts will undertake it. Professor Malcolm Feeley, Clare Sanders Clements Dean's Chair in Law (Boalt Hall) at University of California, Berkeley stated in his authoritative book Court Reform on Trial: Why Simple Solutions Fail, “[i]t is rare to find an innovation that is carefully initiated and even rarer to see one successfully implemented.” The barriers to change are high—particularly in a large volume, misdemeanor courtroom settings.
Some of the most serious Sixth Amendment violations arise in misdemeanor courts. This may be the need to move cases quickly or from the necessity to keep indigent defense costs low. There courts are responsible for a class of crimes called misdemeanors that limit possible jail time to one year. Across this country, in many of these courts, counsel is either not provided, or provided late.
Many of these misdemeanor courts impose a set of twin barriers which prevent an individual from obtaining legal representation. The elimination of these barriers would help courts and judges comply with the mandate of the Sixth Amendment.
The first barrier is simply the unavailability of an attorney for everyone at their first appearance in court. A National Association of Criminal Defense Lawyers study of the Florida court system, entitled Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts found that seventy percent of misdemeanor cases were resolved at an individual’s first appearance before a judicial officer. Sixty-six percent of those individuals did not have or were not provided with an attorney. A large percentage of those were induced to waive their right to counsel, in part to avoid paying a public defender fee that is imposed in order to obtain a lawyer.
The second barrier is the public defender registration fee. According to the ACLU report Paying for Justice: The Human Cost of Public Defender Fees, 27 states require a prepaid registration fee before a defendant be represented by a public defender. These fees are an unconstitutional impediment to a defendant’s right to counsel. They also encourage guilty pleas at arraignment, particularly in those states where the fee increases sharply for defendants who enter a plea at a later court proceeding. These fees are in effect a punishment designed to discourage an individual from requesting an attorney.
My state of Michigan has begun implementing a plan that requires an attorney be available for every defendant at their first appearance. As Professor Freely has suggested, failing to do so is filled with problems including lawsuits. However, when Michigan fully institutes this plan it will have taken a major step towards full compliance with the Sixth Amendment.
We, in the judiciary, who have taken an oath to uphold the Constitution need to be in the forefront of the efforts to bring the court system into compliance with the mandates of Gideon and the Sixth Amendment. To that end, every judge must require that every defendant have access to an attorney, without the compulsion of a prepaid fee, at first appearance.
Judge Brian MacKenzie (Ret.) is an R2C Consortium Member and Partner at Justice Speakers Institute.