Gideon’s 50th Anniversary: Agreement on the Problem of Unfair Representation, But What About Solutions?

By Raj Jayadev
This month marks the 50th anniversary of one of the most significant Supreme Court decisions this country’s criminal justice system has ever known – Gideon V. Wainwright. The case, along with later decisions, cemented the 6th amendment right to counsel for anyone, regardless if they have the ability to pay.

But in a quick scan of the media today of monthly magazines to news dailies on the topic, readers will find one unified reflection expressed — half a century after Gideon, we are far from realizing effective representation for all. A sweep of the titles reads like a punch in the gut: “Right to Lawyer Eludes the Poor” (New York Times), “Indigent Clients Suffer as Public Defenders Struggle to Keep Up with Caseloads” (Washington Post), “Serious Problems Persist in Indigent Legal Defense” (Associated Press). There are films and books being released to coincide with the anniversary, which give a fuller and more intimate look into the grinding machinery of a broken court system. And while the unanimity on identifying the problem, even echoed from the US Attorney General to the leading legal scholars of our time, is striking, what stands out the most is what is missing from the discussion – solutions.

What can we do so we are not reading the same dismal headlines on the 60th anniversary of Gideon vs. Wainwright?

There is no question that public defenders are overextended and under-resourced. The film “Gideon’s Army” describes the impact of the conditions by saying, “Low pay, long hours, and an endless parade of clients can overwhelm even the most idealistic practitioner over time.” Our nation’s plea rate only evidences those challenges. Nine out of ten of all criminal cases are resolved by plea bargains – leading to the astonishing statistic that more than 1 in every 100 adults in America are in jail or prison. Couple this reality with the alarming over-representation of people of color as defendants and it becomes apparent that ensuring proper representation for all should be viewed as the urgent racial and social justice movement of our time.

The truth is, delivering Gideon’s promise is not a question of law, it is a question of power.

But powerful movements aren’t made by Supreme Court declarations – they are made by those directly impacted by the issue. They are made by folks like Gail Noble and Blanca Bosquez, both mothers I met at a San Jose, California court who have transformed from once isolated family members forced to sit idly as their sons were chewed up by the courts, to now vocal community advocates who assist other families on how they can connect with, or hold accountable, the public defender of their loved one. Their transformation, and the ground level advocacy they do, is fundamental bread and butter community organizing – that basic tenet that people are stronger together than alone, and that collective power of everyday people can transform entrenched institutions. The only difference is that they are using this organizing ethic to penetrate the criminal court system, an arena otherwise thought reserved only for lawyers.

The families Gail and Blanca work with have shifted the balance of power in the courtroom, and are keeping the torch of Gideon lit. Those community support networks they organize, through a family support model called the Albert Cobarrubias Justice Project, have become extensions of the legal defense team – assisting in developing strategies, pointing out inconsistencies in police reports, and ensuring that the attorneys and the courts know there is a larger community present, invested, and involved. They have helped level the playing field for public defenders who are often out-resourced and over-worked. Collaborations between clients, their communities, and their public defender can be a formidable team.

And while we witnessed families partnering with attorneys to get cases dismissed, win jury trials, and dramatically reduce sentences for individual cases – it speaks to the larger possibility of systems change for public defender offices. The right to counsel does not exist in a vacuum. It happens in local landscapes of tough-on-crime politics, prosecutors aiming for higher conviction rates, and overwhelming caseloads for public defenders. Those environments only change if public defender offices have enough political weight to influence local decision-makers come resource allocation or policy setting time. And that’s where the real organizing potential of public defender clients and their communities can change the game.

The community organizing infrastructure to bring about equal representation for all already exists; it needs only to be engaged. Public defender clients are not isolated individuals; they are often part of a community fabric, members of churches, civic organizations, ethnic centers, unions, neighborhood associations. These are the same hubs that elected officials and policy-makers who decide the resources for public defenders covet for votes or public support.

While communities organize for improvements in other public services – under-resourced schools, potholes in the street, even police misconduct – that organizing strength is rarely flexed in the context of the courts. Part of this is due to the perception that the law is only for lawyers. But that’s like saying our health care system should only be discussed by doctors. And that relinquishing of power only allows the system to stay the same.

In the book Chasing Gideon: The Elusive Quest for Poor People’s Justice, author Karen Houppert writes that the question as to what can be done to fulfill the promise of Gideon is, “echoing and bouncing off the walls of marbled courthouses all across the nation, where the players know what needs to be done in a technical sense to fix the problem but no one can generate the political will necessary to change things.”

That political will may be generated by the “players” which haven’t been viewed as the key agent of change – the clients and their communities. They can advocate for the changes public defenders need to do their job, and their clients deserve.

In a piece entitled, How Americans Lost the Right to Counsel, 50 Years After ‘Gideon’” in The Atlantic, Andrew Cohen writes, “And today, elected officials see no political value in spending the money it would take to ensure that every American has an opportunity for equal justice.” Community organizing would change that calculus. Would churches, community groups rally for more resources for indigent defense offices at their county board of supervisors meeting if they knew it would give their congregant, member, brother or sister, a fairer chance at justice? Absolutely. Could these groups pressure state or national elected officials for improvements indigent defense? Without a doubt.

When I drive by the courthouse and look at the line of people waiting to get in for their court date, I don’t see defendants, I see organizers. I think about the families, friends, co-workers, religious affiliations and community groups of all those people – and imagine the powerful movement they can be to ultimately bring fairness to the court system. They, like Clarence Earl Gideon himself, are not lawyers, but are still the agents of change who can deliver the promise of his historic case.

Raj Jayadev is the Coordinator of the Albert Cobarrubias Justice Project, an organizing model for families and communities to impact their criminal court systems. ACJP is a part of Silicon Valley De-Bug.

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