Tuesday, June 11, 2013
Erwin Chemerinsky (University of California, Irvine School of Law) has posted Lessons from Gideon (Yale Law Journal, Vol. 122, 2013, Forthcoming) on SSRN. Here is the abstract:
Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding.
Providing adequate funding for counsel, whether in criminal or civil or immigration cases, will be problematic so long as it is a welfare program for the poor. The right to counsel will be meaningful only if there are enforcement mechanisms to ensure adequate funding and the provision of competent counsel.