GIDEON’S PROMISE – IS IT BROKEN?

1. “A society should not be judged on how it treats its outstanding citizens but by how it treats it criminals.” Fyodor Dostoevsky “The poor man charged with crime has no lobby. Ensuring fairness and equal treatment in criminal trials is the responsibility of us all.” Attorney General Robert Kennedy GIDEON’S PROMISE – IS IT BROKEN?

2. Historical Context 1963: Gideon v. Wainwright 1971: President Nixon Declared “War on Drugs” 1975: Baxter v. Rose – criminal defendants have the right to effective assistance of counsel. 1984: Strickland v. Washington 1985: Ake v. Oklahoma – right to resources.

3. Since Gideon, the size of our criminal justice system has mushroomed. Example: Incarceration rates in the United States, from 1980 to 2009: • Total numbers of persons incarcerated increased from ~ 500,000 to over 2.3 million (>4x increase) • Incarceration rates increased from ~ 200 to 750 per 100,000 (>3x increase) (More than 1 out of 100 adults are incarcerated) • Total persons under judicial supervision increased from ~ 1.8 million to over 7.3 million (>3x increase) (jail, prison, probation, parole)

6. The criminal justice system is focused on the poor, people of color, and the mentally ill. • 75% to 85% of all criminal defendants are indigent. • Black male youth have 32% chance of serving time (Compared to 6% chance for white male youth). • Approx. 20% of inmates have been diagnosed with mental health problems; and • Approx. 50% exhibit symptoms of mental health problems (per Bureau of Justice Statistics)

7. Expenditures on criminal justice have increased.

8. Bureau of Justice StatisticsKey Facts At A GlanceLocal governments spend more on criminal justice than state governments or the federal government. Source: Justice Expenditure and Employment Extracts Note: Does not include intergovernmental expenditures such as federal grants; but these dollars are included as direct expenditures by the recipient government when they are spent for salaries, supplies and so on.

9. Bureau of Justice StatisticsKey Facts At A GlanceDirect expenditure for each of the major criminal justice functions (police, corrections, judicial) has been increasing. Source: Justice Expenditure and Employment Extracts

10. Expenditures on indigent defense havenot kept pace.

11. Example: Attorney fees for appointed counsel. Tenn.S.Ct. Rule 13 Attorney Fees vs. Market Rates in Civil Cases

12. A huge disparity of resources exists in the prosecution and indigent defense functions in Tennessee. Prosecution function: >$130+ million + “in kind” services Defense function: ~$57 million From The Spangenberg Group (June 2007)

13. Gideon’s Broken Promise “The testimony presented by witnesses at ABA SCLAID’s hearings clearly revealed that Gideon’s promise of effective legal representation for indigent defendants is not being kept. Far from ensuring that individuals are afforded a meaningful right to counsel, current indigent defense systems often operate at substandard levels and provide woefully inadequate representation. Witnesses described programs bereft of the funding and resources necessary to afford even the most basic tools essential for an effective defense. As a result, literally thousands of accused poor persons who are unable to afford counsel routinely are denied, either entirely or in part, meaningful legal representation.” A Report on the American Bar Association’s Hearings on the Right to Counsel in Criminal Proceedings, American Bar Association Standing Committee on Legal Aid and Indigent Defendants (December 2004)

14. Problems identified by the ABA report on the right to counsel 1. Lack of adequate funding: • Inadequate attorney compensation • Excessive caseloads • Lack of essential resources • Lack of training • Undue restrictions on eligibility for indigent defense resources. • Resource disparity between prosecution and indigent defense

15. Problems, continued 2. Inadequate legal representation: • “Meet ‘em and Plead ‘em” lawyers • Lack of continuity in representation • Incompetent and inexperienced lawyers • Lack of investigation, research and zealous advocacy

16. Problems, continued 3. Structural defects: • Lack of independence • Absence of oversight to ensure uniform quality • Detention without lawyer • Encouraging waivers of right to counsel and subsequent pleas of guilty • Inordinate delays in the process • Lack of private bar participation • Lack of data regarding indigent defense systems

17. “The bar has not enjoyed prerogatives; it has been entrusted with anxious responsibilities. One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to ‘life, liberty and property’ are in the professional keeping of lawyers. It is a fair characterization of the lawyer’s responsibility in our society thathe stands as a shield in defense of right and to ward off wrong.” Schare v. Bd. Of Bar Examiners, 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring)

18. Matt Sweeney: 615-726-5774 msweeney@bakerdonelson.com