CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 21, 2014

Zeidman on Gideon

Zeidman steveSteven Zeidman (CUNY School of Law) has posted Gideon: Looking Backward, Looking Forward, Looking in the Mirror (Seattle Journal for Social Justice, Volume 11, Issue 3, Article 5, Spring 2013) on SSRN. Here is the abstract:

People concerned about the rights of poor people who have been charged with crime talk longingly and despairingly about “the promise of Gideon.” Various lawsuits, myriad commissions, and numerous law review articles since time immemorial have detailed the crisis in indigent defense. In fact, reference to “the promise of Gideon” is usually immediately preceded by reference to “the crisis in indigent defense.”

The oft-chronicled “problem” and “crisis” of indigent defense is usually cast as one of resources — either defense attorneys are not being provided at critical stages of the case, or they are so under-resourced that they are unable to provide truly effective assistance. Whether viewed as actual or constructive denials of the right to counsel, these critical issues are but preliminary matters to analyze when confronting the failed promise of Gideon.

While it is of course necessary to demand that fully resourced attorneys be made available for all who are accused of crime, that in and of itself is not sufficient to fulfill the promise of Gideon.

In Gideon, Justice Black wrote that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” It seems clear that Clarence Earl Gideon wanted an attorney to represent him at trial. The truth, or irony, is that even as attorneys are being provided more and more often, their representation usually consists of facilitating guilty pleas. Even the United States Supreme Court recently acknowledged that the prevailing, dominant mode of criminal defense representation is entering guilty pleas. The undeniable truth is that Gideon’s original request for a lawyer to be appointed to represent him at trial has devolved into lawyers appointed to negotiate plea bargains.

This essay argues that the single-minded attention given to increasing resources as the external cure for what ailed Clarence Earl Gideon obscures a long overdue examination of what it is that public defenders actually do on behalf of their clients. All too often, public defenders and advocates for indigent defendants point fingers when asked about the indigent defense crisis — the government will not pony up sufficient funds, the legislature criminalizes too many things, the police department makes too many quality-of-life arrests, the prosecution rarely declines to prosecute, the judges seldom dismiss, etc. All of these accusations are legitimate and contribute mightily to the “crisis.” Nevertheless, this essay argues that public defenders must also look inward and ask how, if at all, they contribute to Gideon’s failed promise and how they might change for the better.

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