Criminal Courts and Legal Representation for the Poor

In Gideon v. Wainwright (1963) the Supreme Court ruled that state courts are required under the Sixth Amendment to provide legal counsel to defendants who are too poor to provide their own counsel. Unfortunately, the manner of provisioning counsel was left up to the states. There was then no standard which must be met in terms of quality of legal counsel provided. The Supreme Court has been gradually tightening the terms under which adequate legal representation is said to have been provided, but a poor person in the clutches of our legal system has no guarantee that he will be provided the assistance to which he has a right.

Michelle Alexander, in her book The New Jim Crow, provides us with a description of the legal environments the poor are likely to encounter. She tells us that about 80% of criminal defendants are considered indigent and unable to afford a lawyer. That should alert one immediately to the need for a tremendous number of public defenders—more than the system is ever likely to provide. It is perhaps asking too much of human nature to expect those whose goal is to demonstrate a toughness on crime by convicting and incarcerating as many as possible, to also fund an effective countervailing force of public defenders.


"Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer....often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives"

Inadequate funding discourages many from considering public defense as a career path, and produces enormous case loads for those who choose to do so.


"Sometime defenders have well over one hundred clients at a time; many of these defendants are facing decades behind bars or life imprisonment."

"In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $428. And in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer. In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year."

Alexander provides this quote from a 2004 report by the American Bar Association:


"All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States."

Given this background, it is encouraging that recent Supreme Court decisions have provided judges with a greater mandate to demand that defendants not only have legal counsel at critical stages of the legal process, but that it also be competent and effective counsel. An editorial in the New York Times summarizes the cases in which defendants received bad advice from their lawyers concerning plea bargains. It draws this conclusion.


"There is no constitutional right to a plea bargain, and these cases do not change that fact. But if prosecutors make a plea offer, the court now requires that defendants have effective counsel in considering the offer. With this new standard, judges are more likely to require prosecutors to make plea offers in writing or in open court so that there is no dispute about the offer and no doubt that the defendants understood what they rejected."

It is quite possible that these rulings will have a major effect by injecting a greater degree of justice into our legal system. It will depend on how clever prosecutors are at avoiding legal complications, and on how diligent judges are in defending the rights of the accused. Let us be encouraged for the moment.