Kagan, Holder Address the Five Decades Since Historic Gideon Decision

By Andrew Ramonas

Indigent defendants aren't entitled to "the best defense money can buy," U.S. Supreme Court Justice Elena Kagan said on Friday at a U.S. Justice Department event marking the 50th anniversary of the high court's landmark Gideon v. Wainwright decision, which guaranteed that people accused of crimes have the right to a lawyer even if they can't pay.

Speaking before a standing-room only crowd in DOJ's Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a "Cadillac" lawyer isn't a right for poor defendants. But they should at least have a "Ford Taurus" defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.

"We don't have the resources to make [a Cadillac defense] happen," Kagan said. "And I'm not sure if we did have the resources that that's exactly what we should want."

But even a Taurus defense is hard to come by, she said. In the five decades since the March 18, 1963, decision, states have faced challenges adhering to the high court's unanimous decision that found that "lawyers in criminal courts are necessities, not luxuries." If a person facing a felony charge is too poor to hire a lawyer, the court ruled, the government is obligated to provide one for free. Subsequent decisions expanded the right to juvenile proceedings and certain misdemeanors.

The National Law Journal today highlights three jurisdictions that have struggled with Gideon: Wisconsin, Maryland and Louisville, Ky. In Wisconsin, private lawyers who are hired to represent indigent defendants are paid $40 an hour—unchanged since 1978. As for Maryland, a state court of appeals last year ruled defendants are entitled to counsel at bail hearings—but rather than coming up with $28 million to pay for it, the state legislature repealed the law instead. And in Louisville, public defenders are each assigned nearly 500 cases a year.

"I think there's a lot we still need to do," Kagan said.

During the event, Holder announced $1.8 million in new resources to support criminal legal defense. Indigent defense is in a "state of crisis," said Holder, who in 2010 launched the Access to Justice Initiative in an effort to make legal services accessible and affordable to all Americans.

"Despite half a century of progress even today, in 2013, far too many Americans struggle to gain access to the legal assistance that they need," Holder said. "And far too many children and adults routinely enter our juvenile and criminal justice systems with little understanding of the rights to which they're entitled, the charges against them or the potential sentences they may face."

Mondale, who as Minnesota's attorney general in 1963 brought together 21 state attorneys general in an amicus curiae brief in support of indigent defendant Clarence Gideon, said he was "a little naïve" that solid legal help would come automatically to needy people after the Gideon decision.

"I think it's unquestionably a strong, powerful decision that's been very important to the cause of justice in America, and I don't want to be misunderstood," said Mondale, who is now a Dorsey & Whitney senior counsel in Minneapolis. "But it's been a troubled history."

Comments

[David Crow]

It strikes me that courts both state and federal have to make decisions that the defense provided for the indigent is inadequate and, thus, unconstitutional viv-a-vis Gideon.