Resource: Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.

By: National Right to Counsel Committee

April 14, 2009

[Edited, from the website:]

[Notwithstanding the nominal right of indigent defendants to publicly provided counsel,] Today, in criminal and juvenile proceedings in state courts, sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric. Throughout the United States, indigent defense systems are struggling. Due to funding shortfalls, excessive caseloads, and a host of other problems, many are truly failing. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems. In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever. Although troubles in indigent defense have long existed, the call for reform has never been more urgent.

For the first time since the Gideon decision, an independent, diverse group, whose members include the relevant constituencies of the justice system, has examined the nation’s ways of providing defense services for the poor and is sounding the alarm about the grave problems that exist today nationwide. The Committee’s two-fold mission was to examine, across the country, whether criminal defendants and juveniles charged with delinquency who are unable to retain their own lawyers receive adequate legal representation, consistent with decisions of the Supreme Court and rules of the legal profession, and to develop consensus recommendations for achieving lasting reforms.

In approaching these subjects, the Committee was mindful that there have been numerous studies that have cataloged the problems with indigent defense, but these reports have not had significant impact in bringing about improvements. For this reason, the Committee was determined that its Report focus not simply on all that ails indigent defense—but that it also present detailed information on successful strategies for change.

Chapter Summaries
Chapter 1—The Right to Counsel: What is the Legal Foundation, What Is Required of Counsel, and Why Does It Matter?
Chapter 2—Indigent Defense Today: A Dire Need for Reform
Chapter 3—How to Achieve Reform: The Use of Litigation to Promote Systemic Change in Indigent Defense

There is no better evidence of the problems in implementing the Supreme Court’s right to counsel decisions than the enormous number of lawsuits that have been brought over a period of many years and the litigation currently pending, in which indigent defense representation has been challenged in the courts. Many times, as reflected in Chapter 3 (and in other chapters), these challenges have been successful and have led to improvements.

The lawsuits that we discuss were brought in federal and state courts in the following jurisdictions: Alabama, Alaska, Arizona, California, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Washington, and West Virginia. In addition, as this Report was completed, litigation respecting indigent defense was pending in at least seven states, five of which are reviewed in Chapter 3. In Michigan and New York, lawsuits have been brought challenging entire systems for the delivery of indigent defense services. In Florida, Kentucky, and Tennessee, litigation is pending in which defense lawyers have challenged the actions of trial courts in seeking to require public defense programs to handle caseloads alleged to be excessive.

In concluding Chapter 3, we sum up lessons learned in seeking indigent defense reforms through litigation. We suggest that actions should be instituted pretrial on behalf of all, or a large class of indigent defendants, in order to secure a favorable remedy with broad impact. We also stress the importance of involving pro bono counsel from large law firms or the involvement of lawyers from public interest legal organizations, since systemic reform litigation is time consuming and requires an expertise not typically possessed by public defense practitioners. We also stress the importance of strong factual support on behalf of the claims asserted and discuss the role of the media and public support in fostering a climate likely to lead to a successful outcome.

Chapter 4—How to Achieve Reform: The Use of Legislation and Commissions to Produce Meaningful Change
Chapter 5—Recommendations and Commentary