EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 13, 2011

Article of Interest: Heather Baxter's Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis

Recently, I have been working on article that addresses the issue of whether the standard plea colloquy -- in which the judge asks the plea bargaining defendant whether his plea is "knowing, voluntary, and intelligent" -- is sufficient given the current public defender and economic crises. My argument is that it is not and that courts need to reconsider the language used in plea colloquies by referencing the Supreme Court's classic opinions in Gideon v. Wainwright and Miranda v. Arizona. Here is the opening paragraph to the abstract for the article:

In its landmark opinion in Miranda v. Arizona, the Supreme Court held that before a police officer can subject a suspect to custodial interrogation, he has to inform him not only that he has the right to attorney but also "that if he cannot afford an attorney one will be appointed for him…." 384 U.S. 436, 474 (1966). According to the Court, this latter admonition was necessary because the "[d]enial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford" could be supported by neither logic nor reason. Id. at 472-73. Indeed, "we should hardly be surprised to see the Court in Miranda take steps to protect indigent suspects subject to custodial interrogation; those steps mirrored perfectly the economic egalitarianism of the mid-1960s that marked the national mood." Corinna Barrett Lain, Countermajoritiarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1413 (2004). In including this latter admonition, the Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Id.

So, what's the present problem with plea bargaining? Well, indigent defendants and public defenders are bringing lawsuits across the country, claiming that defendants are accepting plea bargains because, for all intents and purposes, they have no other choice. Their public defenders simply lack the time and resources to mount a vigorous defense at trial. And, what's the solution? The proposal in my article, which I have tentatively titled "If Your Attorney Cannot Afford You," is that courts need to add some variation of the following question to the plea colloquy: "Are you pleading guilty because you feel that your counsel is ineffective based upon lack of time and/or resources and would not be able to mount an adequate defense at trial?"  

Of course, this is a stop-gap measure. If a defendant answers this question in the affirmative, it means that the plea deal is rejected, and the defendant is returned to the same cash- and time-strapped public defender or other court-appointed counsel with (likely) similar issues. And that's part of my point. Maybe if judges, legislatures, and/or prosecutors see enough defendants making this claim in court, they will start to think about enacting some more permanent changes. And what might those changes be? That's the topic of a really interesting article that I came across in my research: Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 341 (2010), by Heather Baxter, a professor at the Nova Southeastern Law Center.

Muffling Gideon's Trumpet

In Gideon v. Wainwright, the Supreme Court recognized the "Sixth Amendment's guarantee of counsel" as "'fundamental and essential to a fair trial'" because "'[e]ven the intelligent and educated layman...requires the guiding hand of counsel at every step in the proceedings against him....'" So why, in the abstract to her article, does Professor Baxter assert that "Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country?" As she later notes in her article, there are a variety of reasons:

Funding Has Gone the Wrong Way: For example, (1) In 2009, Georgia's Northern Judicial Circuit, the conflict counsel's budget was reduced from $129,166.00 to a mere $37,152.00, a more than 70% decrease in funding; and (2) in 2008, in Florida's Ninth Judicial Circuit, the criminal justice system experienced budget reductions of $3 million;

Overwhelming Number of Cases: Professor Baxter cites a lot of disturbing statistics here, but I think that two examples drive the point home: (1) "[I}n Florida, one assistant public defender (APD) was assigned a total of 778 cases for the fiscal year of 2008-09. According to his calculations, this allowed him a mere three hours a year to spend on each case;" and (2) In Detroit, a study revealed that attorneys from the Misdemeanor Defender Professional Corporation representing indigent defendants likely "spend only thirty-two minutes per case;" 

Ethical Implications: Professor Baxter notes that time and funding restrictions make it virtually impossible for public defenders and contract attorneys to comply with the ethical requirements of the Model Rules of Professional Conduct;

Disproportionate Funding: The gap in staffing and funding between prosector and public defender offices is substantial and widening. For instance, a study in Tennessee of these respective offices revealed "a disparity of over $73 million between the offices for fiscal year 2005;" and

Politics as Usual: "Even though most research points to the fact that a public defender's office is the most cost effective way to provide for indigent defense, the defense bar is not always willing or able to expedite the process of developing such a system."

Professor Baxter then sheds light on lawsuits in Florida, Kentucky, Michigan, Florida, and New York, in which defendants and public defenders have claimed that the current state of indigent defense violates defendants' constitutional rights. In summing up this litigation, she concludes that

When comparing these lawsuits, the most notable difference between the successful lawsuits and the unsuccessful lawsuits lies in who the plaintiffs are. Public defenders bringing suit, while perhaps garnering some sympathy from the courts, have not actually prevailed. On the other hand, when the plaintiffs are the indigent defendants themselves, and, therefore, are those who have presumably suffered the constitutional violation, the courts seem much more likely to at least let the lawsuit survive. The downside to such suits, however, is the lack of general effect they may have on the criminal justice system. Although they may generate relief for some individual defendants, it is unlikely that they can affect the kind of change necessary to make a difference in the indigent defense system as a whole.

Sounding the Trumpet Again

So, how can we breathe life back into Gideon's ghost? Professor Baxter proposes three practical solutions:

Abandon the Tough-on-Crime Mentality: According to Professor Baxter, "[i]n 1970, one in every 400 Americans was incarcerated. Today, that number has quadrupled, with nearly one in every 100 adults being incarcerated, more than in any other affluent country. America has five times more people incarcerated than in Britain, nine times more than Germany, and twelve times more than Japan." So, how did we get here? Well, a large part of the equation is the war on drugs, with the number of people in prison for drug crimes increasing from 40,000 in 1980, to 500,000 today. This increase can be attributed both to the increasingly harsher penalties for drug offenses and the "inevitable recidivism of incarcerated prisoners." Professor Baxter acknowledges that harsher penalties might deter crime but cites statistics indicating that this deterrence is of the "pound of prevention for an ounce of cure" variety. This is not to say that the war on drugs should be abandoned, just that it should be recalibrated. As Professor Baxter notes,

in one state, it was found that 60% of parole violations were a result of the parolee using alcohol or drugs, or merely failing to report to their parole officer. Many of those then rearrested are subject to even harsher sentences based on laws designed to deter repeat offenses. These victimless crimes are creating a vicious circle of incarceration that overburdens and drains the resources of the states. At an average annual cost of $25,000 per prisoner, the incarceration of these drug offenders is costing the states $12.5 billion dollars a year. If this money were to be divided amongst the fifty states, each state would see a windfall of $230 million per year. This money could then be used to combat violent crime and create more diversion programs that would actually help stop the cycle of incarceration that has become so prevalent. Of course, this money could also be used to help fund a failing indigent defense system.

Misdemeanor Reform: She next notes that "[a]nother way to find more money for state budgets—and free up public defenders—is to reform the misdemeanor system as it currently exists in this country. Right now, the misdemeanor system is a 'black hole for justice and resources.' Misdemeanor prosecutions have more than doubled in the last thirty years, going from five million in 1972 to 10.5 million in 2006." Why? Over-criminaliation. And, what's the solution? In Hawai'i, "the State legislature passed an act that required a non-partisan research group 'to identify minor criminal offenses for which typically only a fine is imposed and which may be decriminalized without undermining the ability of government to enforce laws within its jurisdiction.'" The result? "Following the recommendation of the group, the Hawaii legislature decriminalized a host of agricultural, conservation-related, transportation, and boating offenses." Moreover, other jurisdictions, such as King County, Washington, have expanded diversion programs.

Prosecutorial Discretion: In the absence of such legislative action, Professor Baxter argues that prosecutors can exercise their discretion. She points out that

One Philadelphia prosecutor has embraced this idea. R. Seth Williams took over the job as the new district attorney in crime-ridden Philadelphia in January 2010. One of the first things on his agenda was to get "smart on crime," instead of tough on crime. In following his word, Mr. Williams downgraded penalties for possessing small amounts of marijuana from jail time to community service and fines. Even more important are the changes Mr. Williams is making in the unit that decides what charges to file. That unit previously consisted of five lawyers, mostly new prosecutors, who were told to file "the widest and harshest charges they could."  This idea of "throwing everything at the wall and seeing what sticks" is prevalent amongst many prosecuting offices. Under Mr. Williams' administration, however, the unit has been increased to eighteen lawyers who are told to spend time considering what charges will be likely to succeed. They have also been authorized to offer more plea bargains earlier in the process.


As noted, the Warren Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Based upon the above, it is easy to see why Professor Baxter perceives Gideon as a ghost, the distant echo of a promise made to the poor decades ago. I think that Professor Baxter does a very nice job in her article of shedding light on Gideon's "ghostly shadow" and advances some practical proposals that could go a long way to reviving the right to counsel in this country. I asked Professor Baxter what led her to write the article, and she responded, 

I would say it was a combination of my background and my love for NPR that led me to write this piece. I worked for many years as a judicial staff attorney for the criminal trial court judges here in Fort Lauderdale.  Part of my duties included reviewing post-conviction motions regarding ineffective assistance of counsel, so I was very familiar with this particular niche of the right to counsel.  As a former state employee, I was also very familiar with the effect budget cuts were having on many state agencies.  Then, driving home from school one day, I heard a story on NPR (so many of my conversations start that way!)  about a new study conducted by the Constitution Project called, "Justice Denied."  I came home, looked up the study, and was flabbergasted at the budget cuts affecting public defenders across the country.  I had lunch with a colleague the next day, and the study became a topic of our conversation.   She saw how passionate I was about this travesty and suggested I write an article about it.  Just like that, Gideon's Ghost was born!



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