[Congressional Record Volume 159, Number 39 (Monday, March 18, 2013)]
[Extensions of Remarks]
[Pages E323-E324]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     50 YEARS LATER, WE MUST WORK TO FULFILL THE PROMISE OF GIDEON

                                 ______
                                 

                       HON. JANICE D. SCHAKOWSKY

                              of illinois

                    in the house of representatives

                         Monday, March 18, 2013

  Ms. SCHAKOWSKY. Mr. Speaker, I rise today to commemorate the 50th 
Anniversary of Gideon v. Wainwright. This Supreme Court case 
established that all Americans have a right to counsel in criminal 
trials--even if they cannot afford it. The Gideon decision was clear: 
American citizens moving through the criminal justice system deserve 
appropriate representation under the law.
  Unfortunately, fifty years after this case was decided, that promise 
of Gideon has not been fully realized. Today, ever increasing numbers 
of American citizens fall through the cracks in our justice system, 
sitting behind bars because they did not have access to legal 
representation.
  On this important anniversary, we must commit ourselves to ensuring 
that all Americans have meaningful access to legal representation so 
that they are not left at the mercy of a justice system that is 
difficult to navigate and weighted against them. As Michelle 
Alexander's explains in The New Jim Crow, ``tens of thousands of poor 
people go to jail every year without ever talking to a lawyer.'' An 
article by Karen Houppert in this Sunday's Washington Post describes 
how ``one man, accused of burglary, sat in jail for more than a year 
while waiting for an attorney to be assigned to him.'' I believe that 
those situations are unconscionable. Wealth should not be required buy 
access to a responsive justice system. All Americans should have ready, 
meaningful access to an attorney when their futures and interests are 
at risk.
  We must make sure that the services aimed at assisting the poor are 
adequately funded. Attorney General Holder has quite accurately 
referred to the ``crisis'' facing services that provide legal services 
to the poor. Today, public defenders have caseloads that are often 
hundreds of cases above the numbers recommended by the American Bar 
Association. With staff stretched that thin, the level of service 
provided in any one case inevitably suffers. As is noted in The New Jim 
Crow, ``...those who do meet with a lawyer for a drug offense often 
spend only a few minutes discussing their case and options before 
making a decision that will profoundly affect the rest of their 
lives.'' We must make sure that the attorneys who are assisting low-
income individuals have the ability and resources to do so in a way 
that is meaningful and effective.
  We must also commit ourselves to broadening the scope of cases that 
warrant a right to legal counsel. Gideon applies only to criminal 
cases--legal issues like home foreclosures, job loss, spousal abuse and 
parental custody are not covered. Individuals in these situations may 
lose their homes, their livelihoods, or worse, because they do not have 
access to representation.
  While these cases are ``civil'' in nature, they often carry a very 
real risk of jail time. I believe that Gideon should be applicable in 
these situations, because individuals facing a potential loss of 
liberty deserve the right to representation.
  The Legal Services Corporation, which provides civil legal services 
to people who cannot otherwise afford them, received $70 million less 
in fiscal year 2012 than it did at its peak funding. This comes as the 
Legal Services Corporation is more strained than ever, helping low-
income families dealing with the greatest economic crisis since the 
Great Depression. According to the New York Times, over 60 million 
Americans qualify for the Corporation's services, but 80% of the legal 
needs of the poor go unmet. Those numbers are disheartening and 
unacceptable and must be addressed.
  I urge my colleagues to read the attached articles and to work to 
restore the meaning of the Gideon decision by ensuring that all 
individuals have meaningful access to legal counsel.

               [From the Washington Post, Mar. 15, 2013]

 Indigent Clients Suffer as Public Defenders Struggle To Keep Up With 
                               Caseloads

                          (By Karen Houppert),

       In 1961, an itinerant man named Clarence Earl Gideon was 
     accused of breaking into a pool hall in Florida and stealing 
     some liquor, as well as money from a jukebox and a cigarette 
     machine. He asked the judge in his burglary trial for a 
     lawyer. He was too poor to hire one himself, Gideon said, but 
     he needed help with his case. The judge said the state was 
     under no obligation to provide him with an attorney. So 
     Gideon represented himself, badly, and ended up in prison. 
     But he fought his conviction--all the way to the Supreme 
     Court, insisting that there was no such thing as a ``fair 
     trial'' if both sides didn't have representation.
       Monday marks the 50th anniversary of the landmark Supreme 
     Court decision in that case, Gideon v. Wainwright, which 
     established the constitutional right to free counsel for poor 
     people accused of serious crimes. Most Americans are familiar 
     with this result, thanks to television and movies; police 
     officers say as they arrest someone: ``You have a right to an 
     attorney. If you cannot afford an attorney, one will be 
     provided for you.''
       In the 1960s, complying with the ruling seemed quite 
     possible. Sure, it would be expensive for local governments 
     that had to oversee and fund such efforts. But the number of 
     indigent folks accused of crimes was smaller and, arguably, 
     more manageable. Cities and counties established public-
     defender offices, staffed by salaried lawyers who were paid 
     by the city, county, state or some combination of these; they 
     also developed a roster of private attorneys whom judges 
     appointed on an as-needed basis, paying an hourly rate; and 
     some contracted with a single law firm or attorney for all 
     local public defense.
       It sort of worked.
       But over time the war on drugs, the ``three strikes'' laws 
     and the lock-'em-up mentality of politicians have led to 
     indigent clients flooding the courts. Courts are 
     overburdened, and across the country, lawyers for the poor 
     are routinely buried beneath crushing caseloads and working 
     in underfunded offices. Without adequate resources, it's hard 
     to hire the investigators, experts or paralegals to mount a 
     good defense. The stakes are high--for the man on death row 
     to the teen picked up for marijuana possession.
       Attorney General Eric Holder decried the ``crisis'' in 
     indigent defense when he spoke to the American Bar 
     Association last year. Programs across the country were 
     ``underfunded and understaffed,'' he said. Citing 
     ``insufficient resources, overwhelming caseloads and 
     inadequate oversight,'' he worried about a breakdown: ``Far 
     too many public defender systems lack the basic tools they 
     need to function properly.''
       The problems have been well documented. A 2009 
     investigation by the Constitution Project, the National Legal 
     Aid & Defender Association and the National Right to Counsel 
     Committee concluded that the system of providing counsel for 
     the poor was broken and that defendants' constitutional 
     rights were routinely violated. The groups drew from news 
     articles, law reviews and myriad panicked reports that 
     cities, counties and states had generated. Their report, 
     ``Justice Denied: America's Continuing Neglect of Our 
     Constitutional Right to Counsel,'' documented instances in 
     which public defenders carried as many as 500 active felony 
     cases at a time (the American Bar Association recommends 150) 
     and as many as 2,225 misdemeanor cases (the ABA recommends 
     400).
       The recent economic crisis has exacerbated the problem. In 
     New Orleans last year, the chief public defender had to lay 
     off a third of his staff. Hundreds of people languished in 
     jail for months, waiting for a lawyer to be appointed. One 
     man had been there two months for possessing a joint. Another 
     man, accused of burglary, sat in jail for more than a year 
     while waiting for an attorney to be assigned to him.
       These shortcomings greatly affect people's lives every day. 
     In Washington state in 2004,

[[Page E324]]

     a 12- year-old was accused of molesting his 5-year-old 
     neighbor after the boys had played a game that, the younger 
     one said, involved the older boy putting his hands down his 
     pants. The 12-year-old's overworked public defender advised 
     his client to quickly plead guilty. The lawyer carried 240 
     other criminal cases, never spoke to a witness, hired no 
     investigator, spoke to no experts, met with his client's 
     family for less than two hours and failed to speak to his 
     client alone once; the court ordered the 12-year-old to 
     register as a sex offender for the rest of his life, be 
     tested for sexually transmitted diseases and attend sex rehab 
     workshops. Six years later, on appeal, the state Supreme 
     Court determined that the boy's counsel had been inadequate, 
     and Washington is making strides in reforming indigent 
     defense.
       But plenty of cases are rushed through courts around the 
     country, with equally disturbing results. The crisis in our 
     courts raises questions about how we as a nation define 
     ``justice.'' Will we pay lip service to the notion that 
     everyone has a lawyer to represent them in court? Will we 
     provide a warm body in a suit and tie to stand next to a 
     defendant? Or do we equate ``justice'' with fairness--and 
     provide folks who are accused of crimes with meaningful 
     representation? Is the country committed to a level playing 
     field, the adversarial system of justice in which both sides 
     are properly armed to argue and from which truth emerges? Are 
     we committed to making the system work as it is designed to?
       In the 1800s, Mark Twain joked that ``the law is a system 
     that protects everybody who can afford a good lawyer.'' In 
     many ways, unfortunately, that remains true today.
                                  ____


                [From the New York Times, Mar. 16, 2013]

             Right to Lawyer Can Be Empty Promise for Poor

                           (By Ethan Bronner)

       Billy Jerome Presley spent 17 months in a Georgia jail 
     because he did not have $2,700 for a child support payment. 
     He had no prior jail record but also no lawyer. In Baltimore 
     last fall, Carl Hymes, 21, was arrested on charges of shining 
     a laser into the eyes of a police officer. Bail was set at 
     $75,000. He had no arrest record but also no lawyer. In West 
     Orange, N.J., last summer, Walter Bloss, 89, was served with 
     an eviction notice from the rent-controlled apartment he had 
     lived in for 43 years after a dispute with his landlord. He 
     had gone to court without a lawyer.
       Fifty years ago, on March 18, 1963, the Supreme Court 
     unanimously ruled in Gideon v. Wainwright that those accused 
     of a crime have a constitutional right to a lawyer whether or 
     not they can afford one. But as legal officials observe the 
     anniversary of what is widely considered one of the most 
     significant judicial declarations of equality under law, many 
     say that the promise inherent in the Gideon ruling remains 
     unfulfilled because so many legal needs still go unmet.
       Civil matters--including legal issues like home 
     foreclosure, job loss, spousal abuse and parental custody--
     were not covered by the decision. Today, many states and 
     counties do not offer lawyers to the poor in major civil 
     disputes, and in some criminal ones as well. Those states 
     that do are finding that more people than ever are qualifying 
     for such help, making it impossible to keep up with the need. 
     The result is that even at a time when many law school 
     graduates are without work, many Americans are without 
     lawyers.
       The Legal Services Corporation, the Congressionally 
     financed organization that provides lawyers to the poor in 
     civil matters, says there are more than 60 million 
     Americans--35 percent more than in 2005--who qualify for its 
     services. But it calculates that 80 percent of the legal 
     needs of the poor go unmet. In state after state, according 
     to a survey of trial judges, more people are now representing 
     themselves in court and they are failing to present necessary 
     evidence, committing procedural errors and poorly examining 
     witnesses, all while new lawyers remain unemployed.
       ``Some of our most essential rights--those involving our 
     families, our homes, our livelihoods--are the least 
     protected,'' Chief Justice Wallace B. Jefferson of the Texas 
     Supreme Court, said in a recent speech at New York 
     University. He noted that a family of four earning $30,000 
     annually does not qualify for legal aid in many states.
       James J. Sandman, president of the Legal Services 
     Corporation, said, ``Most Americans don't realize that you 
     can have your home taken away, your children taken away and 
     you can be a victim of domestic violence but you have no 
     constitutional right to a lawyer to protect you.''
       According to the World Justice Project, a nonprofit group 
     promoting the rule of law that got its start through the 
     American Bar Association, the United States ranks 66th out of 
     98 countries in access to and affordability of civil legal 
     services.
       ``In most countries, equality before the law means equality 
     between those of high and low income,'' remarked Earl Johnson 
     Jr., a retired justice of the California Court of Appeal. 
     ``In this country for some reason we are concerned more with 
     individuals versus government.''
       With law school graduates hurting for work, it may appear 
     that there is a glut of lawyers. But many experts say that is 
     a misunderstanding.
       ``We don't have an excess of lawyers,'' said Martin 
     Guggenheim, a law professor at New York University. ``What we 
     have is a miserable fit. In many areas like family and 
     housing law, there is simply no private bar to go to. You 
     couldn't find a lawyer to help you even if you had the money 
     because there isn't a dime to be made in those cases.''
       Even in situations where an individual is up against a 
     state prosecutor and jail may result, not every jurisdiction 
     provides lawyers to the defendants. In Georgia, those charged 
     with failing to pay child support face a prosecutor and jail 
     but are not supplied with a lawyer.
       Mr. Presley lost his job in the recession and fell way 
     behind on support payments for his four children. In 2011, he 
     was jailed after a court proceeding without a lawyer in which 
     he said he could not pay what he owed. He was brought back to 
     court, shackled, every month or two. Each time, he said he 
     still could not pay. Each time, he was sent back.
       A year later, he contacted a public defender who handles 
     only criminal cases but who sent his case to the Southern 
     Center for Human Rights. Atteeyah Hollie, a lawyer there, got 
     him released that same day, helped him find work and set up a 
     payment plan.
       An important service lawyers can provide defendants like 
     Mr. Presley is knowledge of what courts want--receipts of 
     medical treatment, evidence of a job search, bank account 
     statements. On their own, many people misstep when facing a 
     judge.
       In Adel, Ga., a town of 5,000, child support court meets 
     monthly. On a recent morning, a dozen men in shackles and 
     jail uniforms faced Chuck Reddick, a state prosecutor, on 
     their second or third round in court.
       ``In most cases, they simply can't pay,'' said John P. 
     Daughtrey, who was sheriff here until losing an election in 
     November. ``An attorney could explain to the judge why jail 
     is not the solution and how to fix it. As a sheriff, I want 
     criminals in my jail, not a debtor's prison.''
       Mr. Reddick and Judge Carson Dane Perkins of Cook County 
     Superior Court in Adel both said they would welcome lawyers 
     for defendants because it would make the process clearer and 
     smoother.
       ``If we could extend the right to a lawyer to civil 
     procedures where you face a loss of liberty, that would be 
     good,'' Judge Perkins said. ``Lawyers can get affidavits from 
     employers and help make cases for those who can't pay.''
       The Southern Center for Human Rights has filed a class-
     action suit seeking a guarantee of a lawyer for such cases in 
     Georgia. Sarah Geraghty, a lawyer there, said the center had 
     received thousands of calls from Georgians facing child 
     support hearings. Among them was Russell Davis, a Navy 
     veteran with post-traumatic stress disorder who was jailed 
     three times and lost his apartment and car while in jail.
       Georgia also offers a case study on the mismatch between 
     lawyers and clients at a time when each needs the other. 
     According to the Legal Services Corporation, 70 percent of 
     the state's lawyers are in the Atlanta area, while 70 percent 
     of the poor live outside it. There are six counties without a 
     lawyer and dozens with only two or three.
       Mr. Bloss, who faced eviction in New Jersey, went to legal 
     services, which won for him the right to stay in his 
     apartment while his case is under appeal.
       In Baltimore, where Mr. Hymes was accused of shining a 
     laser at a police officer and assigned bail of $75,000, first 
     bail hearings do not include a lawyer. Tens of thousands are 
     brought through Central Booking every year, facing a 
     commissioner through a glass partition, who determines 
     whether to release the detainee on his own recognizance or 
     assign bail and at what level.
       ``For the poor, bail is a jail sentence,'' said Douglas L. 
     Colbert, a law professor at the University of Maryland. A 
     study he conducted on 4,000 bail cases of nonviolent 
     offenders found that two and a half times as many detainees 
     were released on their own recognizance and bail was set at a 
     far more affordable level if a lawyer was at the hearing.
       Mr. Hymes was relatively lucky. When he eventually faced a 
     judge with the help of a public defender, bail was slashed to 
     $200 cash. It took his family a few weeks to pay. A student 
     of Mr. Colbert's, Iten Naguib, acted as an intermediary.
       ``If there had been an attorney involved at the initial 
     stages,'' Ms. Naguib said, ``Mr. Hymes would likely have been 
     released much earlier.'' .

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