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Janice S.
Democrat IL 9

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  • 50 Years Later, We Must Work to Fulfill the Promise of Gideon

    by Representative Janice D. Schakowsky

    Posted on 2013-03-18

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    SCHAKOWSKY of illinois in the house of representatives Monday, March 18, 2013 Ms. SCHAKOWSKY. Mr. Speaker, I rise today to commemorate the 50th Anniversary of Gideon v. Wainwright. This Supreme Court case established that all Americans have a right to counsel in criminal trials--even if they cannot afford it. The Gideon decision was clear: American citizens moving through the criminal justice system deserve appropriate representation under the law.

    Unfortunately, fifty years after this case was decided, that promise of Gideon has not been fully realized. Today, ever increasing numbers of American citizens fall through the cracks in our justice system, sitting behind bars because they did not have access to legal representation.

    On this important anniversary, we must commit ourselves to ensuring that all Americans have meaningful access to legal representation so that they are not left at the mercy of a justice system that is difficult to navigate and weighted against them. As Michelle Alexander's explains in The New Jim Crow, ``tens of thousands of poor people go to jail every year without ever talking to a lawyer.'' An article by Karen Houppert in this Sunday's Washington Post describes how ``one man, accused of burglary, sat in jail for more than a year while waiting for an attorney to be assigned to him.'' I believe that those situations are unconscionable. Wealth should not be required buy access to a responsive justice system. All Americans should have ready, meaningful access to an attorney when their futures and interests are at risk.

    We must make sure that the services aimed at assisting the poor are adequately funded. Attorney General Holder has quite accurately referred to the ``crisis'' facing services that provide legal services to the poor. Today, public defenders have caseloads that are often hundreds of cases above the numbers recommended by the American Bar Association. With staff stretched that thin, the level of service provided in any one case inevitably suffers. As is noted in The New Jim Crow, ``...those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives.'' We must make sure that the attorneys who are assisting low- income individuals have the ability and resources to do so in a way that is meaningful and effective.

    We must also commit ourselves to broadening the scope of cases that warrant a right to legal counsel. Gideon applies only to criminal cases--legal issues like home foreclosures, job loss, spousal abuse and parental custody are not covered. Individuals in these situations may lose their homes, their livelihoods, or worse, because they do not have access to representation.

    While these cases are ``civil'' in nature, they often carry a very real risk of jail time. I believe that Gideon should be applicable in these situations, because individuals facing a potential loss of liberty deserve the right to representation.

    The Legal Services Corporation, which provides civil legal services to people who cannot otherwise afford them, received $70 million less in fiscal year 2012 than it did at its peak funding. This comes as the Legal Services Corporation is more strained than ever, helping low- income families dealing with the greatest economic crisis since the Great Depression. According to the New York Times, over 60 million Americans qualify for the Corporation's services, but 80% of the legal needs of the poor go unmet. Those numbers are disheartening and unacceptable and must be addressed.

    I urge my colleagues to read the attached articles and to work to restore the meaning of the Gideon decision by ensuring that all individuals have meaningful access to legal counsel.

    [From the Washington Post, Mar. 15, 2013] Indigent Clients Suffer as Public Defenders Struggle To Keep Up With Caseloads (By Karen Houppert), In 1961, an itinerant man named Clarence Earl Gideon was accused of breaking into a pool hall in Florida and stealing some liquor, as well as money from a jukebox and a cigarette machine. He asked the judge in his burglary trial for a lawyer. He was too poor to hire one himself, Gideon said, but he needed help with his case. The judge said the state was under no obligation to provide him with an attorney. So Gideon represented himself, badly, and ended up in prison. But he fought his conviction--all the way to the Supreme Court, insisting that there was no such thing as a ``fair trial'' if both sides didn't have representation.

    Monday marks the 50th anniversary of the landmark Supreme Court decision in that case, Gideon v. Wainwright, which established the constitutional right to free counsel for poor people accused of serious crimes. Most Americans are familiar with this result, thanks to television and movies; police officers say as they arrest someone: ``You have a right to an attorney. If you cannot afford an attorney, one will be provided for you.'' In the 1960s, complying with the ruling seemed quite possible. Sure, it would be expensive for local governments that had to oversee and fund such efforts. But the number of indigent folks accused of crimes was smaller and, arguably, more manageable. Cities and counties established public- defender offices, staffed by salaried lawyers who were paid by the city, county, state or some combination of these; they also developed a roster of private attorneys whom judges appointed on an as-needed basis, paying an hourly rate; and some contracted with a single law firm or attorney for all local public defense.

    It sort of worked.

    But over time the war on drugs, the ``three strikes'' laws and the lock-'em-up mentality of politicians have led to indigent clients flooding the courts. Courts are overburdened, and across the country, lawyers for the poor are routinely buried beneath crushing caseloads and working in underfunded offices. Without adequate resources, it's hard to hire the investigators, experts or paralegals to mount a good defense. The stakes are high--for the man on death row to the teen picked up for marijuana possession.

    Attorney General Eric Holder decried the ``crisis'' in indigent defense when he spoke to the American Bar Association last year. Programs across the country were ``underfunded and understaffed,'' he said. Citing ``insufficient resources, overwhelming caseloads and inadequate oversight,'' he worried about a breakdown: ``Far too many public defender systems lack the basic tools they need to function properly.'' The problems have been well documented. A 2009 investigation by the Constitution Project, the National Legal Aid & Defender Association and the National Right to Counsel Committee concluded that the system of providing counsel for the poor was broken and that defendants' constitutional rights were routinely violated. The groups drew from news articles, law reviews and myriad panicked reports that cities, counties and states had generated. Their report, ``Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel,'' documented instances in which public defenders carried as many as 500 active felony cases at a time (the American Bar Association recommends 150) and as many as 2,225 misdemeanor cases (the ABA recommends 400).

    The recent economic crisis has exacerbated the problem. In New Orleans last year, the chief public defender had to lay off a third of his staff. Hundreds of people languished in jail for months, waiting for a lawyer to be appointed. One man had been there two months for possessing a joint. Another man, accused of burglary, sat in jail for more than a year while waiting for an attorney to be assigned to him.

    These shortcomings greatly affect people's lives every day. In Washington state in 2004, [[Page E324]] a 12- year-old was accused of molesting his 5-year-old neighbor after the boys had played a game that, the younger one said, involved the older boy putting his hands down his pants. The 12-year-old's overworked public defender advised his client to quickly plead guilty. The lawyer carried 240 other criminal cases, never spoke to a witness, hired no investigator, spoke to no experts, met with his client's family for less than two hours and failed to speak to his client alone once; the court ordered the 12-year-old to register as a sex offender for the rest of his life, be tested for sexually transmitted diseases and attend sex rehab workshops. Six years later, on appeal, the state Supreme Court determined that the boy's counsel had been inadequate, and Washington is making strides in reforming indigent defense.

    But plenty of cases are rushed through courts around the country, with equally disturbing results. The crisis in our courts raises questions about how we as a nation define ``justice.'' Will we pay lip service to the notion that everyone has a lawyer to represent them in court? Will we provide a warm body in a suit and tie to stand next to a defendant? Or do we equate ``justice'' with fairness--and provide folks who are accused of crimes with meaningful representation? Is the country committed to a level playing field, the adversarial system of justice in which both sides are properly armed to argue and from which truth emerges? Are we committed to making the system work as it is designed to? In the 1800s, Mark Twain joked that ``the law is a system that protects everybody who can afford a good lawyer.'' In many ways, unfortunately, that remains true today.

    ____ [From the New York Times, Mar. 16, 2013] Right to Lawyer Can Be Empty Promise for Poor (By Ethan Bronner) Billy Jerome Presley spent 17 months in a Georgia jail because he did not have $2,700 for a child support payment. He had no prior jail record but also no lawyer. In Baltimore last fall, Carl Hymes, 21, was arrested on charges of shining a laser into the eyes of a police officer. Bail was set at $75,000. He had no arrest record but also no lawyer. In West Orange, N.J., last summer, Walter Bloss, 89, was served with an eviction notice from the rent-controlled apartment he had lived in for 43 years after a dispute with his landlord. He had gone to court without a lawyer.

    Fifty years ago, on March 18, 1963, the Supreme Court unanimously ruled in Gideon v. Wainwright that those accused of a crime have a constitutional right to a lawyer whether or not they can afford one. But as legal officials observe the anniversary of what is widely considered one of the most significant judicial declarations of equality under law, many say that the promise inherent in the Gideon ruling remains unfulfilled because so many legal needs still go unmet.

    Civil matters--including legal issues like home foreclosure, job loss, spousal abuse and parental custody-- were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.

    The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans--35 percent more than in 2005--who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.

    ``Some of our most essential rights--those involving our families, our homes, our livelihoods--are the least protected,'' Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.

    James J. Sandman, president of the Legal Services Corporation, said, ``Most Americans don't realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.'' According to the World Justice Project, a nonprofit group promoting the rule of law that got its start through the American Bar Association, the United States ranks 66th out of 98 countries in access to and affordability of civil legal services.

    ``In most countries, equality before the law means equality between those of high and low income,'' remarked Earl Johnson Jr., a retired justice of the California Court of Appeal. ``In this country for some reason we are concerned more with individuals versus government.'' With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.

    ``We don't have an excess of lawyers,'' said Martin Guggenheim, a law professor at New York University. ``What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn't find a lawyer to help you even if you had the money because there isn't a dime to be made in those cases.'' Even in situations where an individual is up against a state prosecutor and jail may result, not every jurisdiction provides lawyers to the defendants. In Georgia, those charged with failing to pay child support face a prosecutor and jail but are not supplied with a lawyer.

    Mr. Presley lost his job in the recession and fell way behind on support payments for his four children. In 2011, he was jailed after a court proceeding without a lawyer in which he said he could not pay what he owed. He was brought back to court, shackled, every month or two. Each time, he said he still could not pay. Each time, he was sent back.

    A year later, he contacted a public defender who handles only criminal cases but who sent his case to the Southern Center for Human Rights. Atteeyah Hollie, a lawyer there, got him released that same day, helped him find work and set up a payment plan.

    An important service lawyers can provide defendants like Mr. Presley is knowledge of what courts want--receipts of medical treatment, evidence of a job search, bank account statements. On their own, many people misstep when facing a judge.

    In Adel, Ga., a town of 5,000, child support court meets monthly. On a recent morning, a dozen men in shackles and jail uniforms faced Chuck Reddick, a state prosecutor, on their second or third round in court.

    ``In most cases, they simply can't pay,'' said John P. Daughtrey, who was sheriff here until losing an election in November. ``An attorney could explain to the judge why jail is not the solution and how to fix it. As a sheriff, I want criminals in my jail, not a debtor's prison.'' Mr. Reddick and Judge Carson Dane Perkins of Cook County Superior Court in Adel both said they would welcome lawyers for defendants because it would make the process clearer and smoother.

    ``If we could extend the right to a lawyer to civil procedures where you face a loss of liberty, that would be good,'' Judge Perkins said. ``Lawyers can get affidavits from employers and help make cases for those who can't pay.'' The Southern Center for Human Rights has filed a class- action suit seeking a guarantee of a lawyer for such cases in Georgia. Sarah Geraghty, a lawyer there, said the center had received thousands of calls from Georgians facing child support hearings. Among them was Russell Davis, a Navy veteran with post-traumatic stress disorder who was jailed three times and lost his apartment and car while in jail.

    Georgia also offers a case study on the mismatch between lawyers and clients at a time when each needs the other. According to the Legal Services Corporation, 70 percent of the state's lawyers are in the Atlanta area, while 70 percent of the poor live outside it. There are six counties without a lawyer and dozens with only two or three.

    Mr. Bloss, who faced eviction in New Jersey, went to legal services, which won for him the right to stay in his apartment while his case is under appeal.

    In Baltimore, where Mr. Hymes was accused of shining a laser at a police officer and assigned bail of $75,000, first bail hearings do not include a lawyer. Tens of thousands are brought through Central Booking every year, facing a commissioner through a glass partition, who determines whether to release the detainee on his own recognizance or assign bail and at what level.

    ``For the poor, bail is a jail sentence,'' said Douglas L. Colbert, a law professor at the University of Maryland. A study he conducted on 4,000 bail cases of nonviolent offenders found that two and a half times as many detainees were released on their own recognizance and bail was set at a far more affordable level if a lawyer was at the hearing.

    Mr. Hymes was relatively lucky. When he eventually faced a judge with the help of a public defender, bail was slashed to $200 cash. It took his family a few weeks to pay. A student of Mr. Colbert's, Iten Naguib, acted as an intermediary.

    ``If there had been an attorney involved at the initial stages,'' Ms. Naguib said, ``Mr. Hymes would likely have been released much earlier.'' .


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