[Congressional Record Volume 169, Number 49 (Thursday, March 16, 2023)]
[Senate]
[Pages S829-S831]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BOOKER (for himself and Mr. Durbin):
  S. 851. A bill to include a Federal defender as a nonvoting member of 
the United States Sentencing Commission; to the Committee on the 
Judiciary.
  Mr. BOOKER. Madam President, this Saturday, March 18, will mark the 
60th anniversary of the unanimous and landmark Supreme Court decision 
in Gideon v. Wainwright, which held that every American has the 
constitutional right in criminal cases, regardless of their wealth and 
where they were born--they have a right, fundamentally, to the public 
defense system that we know today.
  Before Gideon was decided, people accused of crimes were left to fend 
for themselves, having to navigate arraignments, plea bargains, jury 
decisions, trials, cross-examination of witnesses--every part of the 
criminal prosecution, they had to do it themselves while facing 
government prosecutors who had the legal upper hand.
  Clarence Earl Gideon was a 51-year-old with an eighth grade education 
who ran away from home in middle school. History describes him as a 
``drifter'' who spent time in and out of prison for nonviolent crimes, 
but history would also come to know him as someone who fundamentally 
transformed our legal system so that any person without resources 
accused of a crime has a due process right to a fair trial. You can't 
have a fair trial without counsel.
  In 1961, Gideon was arrested for stealing $5 in change and beer, 
allegedly doing so from the Bay Harbor Poolroom in Panama City, FL. As 
James Baldwin would write the same year as Gideon's arrest, ``Anyone 
who has ever struggled with poverty knows how extremely expensive it is 
to be poor.''
  Gideon, who had spent much of his life in poverty, was too poor to 
hire an attorney and asked the trial court to appoint one for him. The 
court denied his request, saying that only indigent defenders facing 
the death penalty are entitled to a lawyer.
  Gideon assumed the burden of defending himself at trial, becoming his 
own lawyer. He made an opening statement to the jury and cross-examined 
the prosecution's witnesses. He presented witnesses in his own defense. 
He declined to testify himself and made arguments emphasizing his 
innocence.
  Despite his valiant efforts, the jury found Gideon guilty of this $5 
theft, and he was sentenced to 5 years' imprisonment. But Gideon felt 
he had been fundamentally deprived of his due process rights.
  Determined to prove his innocence, Gideon penciled a five-page, 
handwritten petition asking the nine Justices of the Supreme Court to 
consider his case. Against all odds, the Supreme Court granted Gideon's 
petition.
  Gideon would tell the Supreme Court:

       It makes no difference how old I am or what color I am or 
     which church I belong to, if any. The question is I did not 
     get a fair trial. The question is very simple. I requested 
     the court to appoint me [an] attorney and the court refused.

  In the Court's unanimous decision, they held that ``reason and 
reflection require us to recognize that in our adversary system of 
criminal justice, any person haled into court, who is too poor to hire 
a lawyer, cannot be assured a fair trial unless counsel is provided for 
him.''
  Gideon's case was sent back to the lower court, where he had a lawyer 
to defend him. It took the jury only 1 hour to come to a verdict and 
acquit him.
  From that time on, the public defense system as we know it today came 
into existence. Folks who couldn't afford a lawyer 60 years ago are now 
guaranteed basic legal protection. Public defenders play a sacrosanct 
role in our society. Every one of America's public defenders embarks on 
the noble work that is the cornerstone of our legal system, ensuring 
that every citizen has a right to a fair trial, that every citizen has 
access to justice within the justice system.
  Yet the promise of Gideon, the promise of this decision, still 
remains unfulfilled. The public defense is under such strain that in 
many places, it barely functions.
  Justice Black declared that ``lawyers in criminal courts are 
necessities, not luxuries.'' But too often across our country, adequate 
legal representation is a luxury only afforded to those who are wealthy 
enough to hire a lawyer.
  Despite their important and essential work to the cause of justice, 
public defenders carry crushing caseloads that strain their ability to 
meet their legal and ethical obligations to provide effective 
representation. According to a 2019 Brennan Center report, only 27 
percent of county-based and 21 percent of State-based public defender 
offices have enough attorneys to adequately handle their caseloads. 
There are counties and States in America where public defenders are 
responsible for more than 200 cases at one time.
  The quality of public defenders also varies from State to State, town 
to town, case to case. Compared to prosecutors and other attorneys, 
public defenders are woefully underresourced and underpaid. That is why 
today, with my friend and colleague from Illinois, Senator Durbin, I am 
introducing the Providing a Quality Defense Act to provide funding to 
local governments to hire more public defenders so that those accused 
of crimes can receive adequate representation.
  The bill will provide funding to increase salaries for public 
defenders so that they can have pay parity with the prosecutors they 
face. It will require

[[Page S830]]

the Department of Justice to conduct evidence-based studies and make 
recommendations for appropriate caseloads for public defenders and for 
adequate compensation.
  Public defenders don't just represent their clients with zealous 
advocacy; they get to know their clients and see the impact of 
convictions on their families and loved ones. This experience is 
invaluable and helps to inform sentencing should there be a conviction. 
However, unlike the majority of State sentencing commissions, the U.S. 
Sentencing Commission, an independent Agency tasked with establishing 
sentencing policies and practices for the Federal court, lacks a 
representative from a public defender background who would provide an 
essential perspective on the criminal justice system.
  Today, again, along with Senator Durbin, I am reintroducing the 
Sentencing Commission Improvements Act to add a member to the U.S. 
Sentencing Commission with a public defender background who will bring 
a new and valuable perspective to the Commission.
  I urge my colleagues to support both of these bills, which will bring 
us one step closer to a justice system that is fairer, more humane, and 
more just. Such a criminal justice system is part of the legacy of a 
so-called drifter, a 51-year-old who spoke truth to power, who 
challenged a system that seemed impossible to beat, who challenged the 
very idea of what it means to have a just justice system. If the moral 
arc of the universe bends towards justice, then Clarence Earl Gideon is 
one of the arc benders.
  Mr. DURBIN. Madam President, behind the scenes of our Nation's 
courtrooms and jails, we will find some of our most dedicated public 
servants. They are America's public defense lawyers. They work long 
hours for low pay, and even less attention and acclaim, to protect the 
most American ideal: equal justice under the law. It is thanks to their 
service that every single citizen in this country is guaranteed the 
right to legal counsel.
  Well, this Saturday, we have a chance to honor them. It is National 
Public Defender Day. This year, National Public Defender Day also marks 
a major milestone in legal history. It is the 60th anniversary of the 
Supreme Court's decision in the landmark case Gideon v. Wainwright.
  As hard as it is to imagine, there were days before the Gideon 
decision when the constitutional right to legal counsel was not 
protected. That means, in some States, if you were charged with a crime 
but couldn't afford a lawyer, you were on your own.
  That is exactly what happened to a man named Clarence Gideon in the 
summer of 1961. At the time, he was down on his luck, struggling with 
the disease of addiction on the streets of Panama City, FL.
  Early one morning in June, he was arrested for a burglary. The 
evidence against him: A witness claimed that they saw him steal from a 
local pool hall. The police arrested him based on that accusation 
alone.
  When Mr. Gideon appeared in court, he told the judge he couldn't 
afford a lawyer, and he asked for an appointed attorney. The judge 
denied his request. He told Mr. Gideon the court could only appoint 
counsel to defendants facing the death penalty. In other words, Mr. 
Gideon was denied his Sixth Amendment right to counsel, which has been 
enshrined in our Constitution since the enactment of the Bill of 
Rights, because he wasn't accused of a very serious crime.
  Well, Mr. Gideon didn't need a law degree to know something was wrong 
here. So he picked up a pen and a sheet of paper and wrote a letter to 
the U.S. Supreme Court, and with that letter, he changed history.
  The Supreme Court agreed to hear his case and finally appointed him 
an attorney--and not just an average attorney--future Supreme Court 
Justice Abe Fortas.
  Fast-forward to March of 1963. The Court issued its decision. All 
nine Justices ruled unanimously in favor of Mr. Gideon. In the majority 
opinion, Justice Hugo Black said, ``Lawyers in criminal courts are 
necessities, not luxuries,'' and he concluded that the ``noble ideal . 
. . [of] . . . fair trials before impartial tribunals in which every 
defendant stands equal before the law . . . cannot be realized if the 
poor man charged with crime has to face his accusers without a lawyer 
to assist him.''
  In the six decades since Gideon, generations of public defenders have 
stepped up to ensure that no one is denied their right to legal 
counsel, and for our most vulnerable neighbors in particular, public 
defenders are an indispensable protection. They have protected the 
rights of low-income and indigent Americans. They have helped 
defendants access resources and services to get their lives back on 
track, and they have worked day in and day out to secure sentences that 
are humane and proportional.
  Moreover, public defenders provide a service to all of us by 
strengthening the integrity of our system of justice. Think about this: 
The United States has one of the highest rates of incarceration in the 
world. So when defendants are denied adequate legal representation, 
they could end up behind bars for crimes they did not commit or receive 
excessive or even inhumane sentences for those that they did commit. 
That is a subversion of justice that wastes resources, violates 
fundamental values, and, worst of all, treats humans as if they are 
disposable objects. So all of us owe a debt of gratitude to the public 
defenders fighting against these injustices.
  But we also need to show that gratitude by providing public defenders 
with the resources they need to advocate for their clients. While the 
legal profession may be lucrative for attorneys working in big, 
corporate boardrooms, the reality is very different for lawyers who 
dedicate themselves to public service. One recent study indicates 
that--when accounting for the cost of overhead--public defenders can 
earn as little as $5.16 an hour.
  With meager salaries for long hours of work, it is really no wonder 
that we are currently facing a shortage of public defense lawyers. And 
that shortage is having a detrimental impact across the country. 
Criminal cases are going unresolved, defendants in need of medical and 
mental services are not being treated, and justice is being delayed--
and therefore--denied. This is a problem that effects every part of the 
country. And right now, States like New Mexico and Oregon have a third 
of the number of public defenders they need to clear their criminal 
caseload.
  Today, Senator Booker and I will be introducing two bills to 
underscore the value of public defenders and provide them with greater 
funding and resources. One of these bills is a piece of legislation we 
first introduced in 2021: the Sentencing Commission Improvements Act. 
We wrote this bill for a simple reason. Public defenders not only 
provide an invaluable service to our country, they also offer an 
invaluable perspective.
  These legal professionals spend countless hours with vulnerable 
defendants, as well as their families. They see firsthand how the 
disease of addiction can lead people down the wrong path and understand 
how to best support them, so they can get on the road to recovery.
  Public defenders help console children who are coming to terms with 
the fact that they may not hug a parent for years because they are 
behind bars. And they are there to hold a parent's hand when they find 
out their son or daughter has received a lengthy sentence. Public 
defenders understand the sobering--and sometimes grim--reality of our 
justice system better than anyone. So to build a system that actually 
prepares incarcerated people to reenter society and become productive 
citizens, we need to give public defenders a seat at the decision-
making table. The Sentencing Commission Improvements Act will achieve 
that by adding an ex officio member to the U.S. Sentencing Commission 
who is a public defender. It is exactly the perspective the Commission 
needs to develop fairer sentencing guidelines.
  Our other bill is the Quality Defense Act. It will create a grant 
program to help fund data collection, hiring, increased compensation, 
and loan assistance programs for public defenders. This bill also 
directs the Justice Department to study and develop best practices and 
recommendations on appropriate public defender caseloads and levels of 
compensation. These measures will provide public defenders with 
resources that reflect the importance of their service and encourage 
attorneys to pursue careers as public defenders.

[[Page S831]]

  I believe our justice system is stronger when it incorporates the 
insights of experts who have worked across the legal spectrum. That is 
why, as chair of the Senate Judiciary Committee, I have worked to 
confirm Federal judges who have served as public defenders. These 
perspectives have long been excluded from the Federal bench, which is a 
disservice to the American public. Thankfully, we are finally changing 
course. Last year, this Senate confirmed the first former public 
defender to ever serve on the Supreme Court: Justice Ketanji Brown 
Jackson.
  And in the past 2 years, we have confirmed more circuit judges with 
experience as public defenders than all prior Presidents combined. One 
of them is Judge Candace Jackson-Akiwumi, who serves on the Seventh 
Circuit in my home State of Illinois. Back in 2017, Judge Jackson-
Akiwumi reflected on her time as a public defender--and how it tested 
her as a legal professional.
  She wrote that, as a public defender, ``I am a counselor, helping 
clients to navigate difficult choices. . . . I am a teacher, 
introducing clients and their families to the federal court system . . 
.
  ``[and] I am a lay social worker: many of our clients have 
disadvantaged backgrounds, extensive mental health histories, substance 
abuse issues, and other everyday challenges.''
  When you work as a public defender, the job demands a lot more than a 
simple attorney-client relationship. It is a job that demands 
resourcefulness, thoughtfulness, and quick, strategic thinking. These 
are the same qualities we need in the judges who serve on our Nation's 
Federal courts. And they are the same qualities people look for when 
they enter the courtroom as a plaintiff or defendant.
  So as we honor National Public Defender Day this weekend, I want to 
thank all of our courageous and dedicated public defense attorneys 
across America. We are grateful for your commitment to defending equal 
justice under law.
                                 ______