[Congressional Record (Bound Edition), Volume 159 (2013), Part 4]
[Senate]
[Pages 4610-4611]
[From the U.S. Government Publishing Office, www.gpo.gov]




                50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT

  Mr. HARKIN. Mr. President, Monday marked the 50th anniversary of the 
Supreme Court's landmark decision in Gideon v. Wainwright. That 
decision recognized that every person accused of a crime, whether 
wealthy or poor, is guaranteed the right to counsel. At its core, 
Gideon is the promise of justice for all, including the most vulnerable 
citizens of our society.
  We need to celebrate that landmark ruling and to recognize Clarence 
Gideon. In many instances throughout our history, it has been ordinary 
citizens who have led to the most profound changes in our country, and 
that is certainly the case here.
  Clarence Gideon was a poor drifter with a history of drinking and 
gambling. He was charged in Florida with breaking and entering into a 
pool hall and stealing money from vending machines. When he requested a 
lawyer be appointed to represent him, because he could not afford to 
hire an attorney, he was told that a lawyer was only provided to 
defendants facing the death penalty.
  From his prison cell at the Florida State Prison, Gideon wrote a 
handwritten note to the U.S. Supreme Court seeking to overturn his 
conviction because he had not been appointed a lawyer. That note read, 
simply: ``The question is I did not get a fair trial. The question is 
very simple. I requested the court to appoint me attorney and the court 
refused.''
  That handwritten note led, 50 years ago Monday, to the Court 
unanimously declaring the ``obvious truth'' that ``lawyers in criminal 
court are necessities, not luxuries.'' As the Court made clear:

       In our adversary system of criminal justice, any person 
     hauled into court, who is too poor to hire a lawyer, cannot 
     be assured a fair trial unless counsel is provided for him.
       From the very beginning, our state and national 
     constitutions and laws have laid great emphasis on procedural 
     and substantive safeguards designed to assure fair trials 
     before impartial tribunals in which every defendant stands 
     equal before the law. This noble idea cannot be realized if 
     the poor man charged with crime has to face his accusers 
     without a lawyer to assist him.

  Mr. President, since Gideon, there has been progress. Since 1963, 
governments have expended greater resources in defending accused 
persons, and many more criminal defendants receive fairer trials with 
due process of law. And, we must acknowledge the thousands of lawyers, 
many of whom have the education and skills to command much higher 
salaries in the private sector, who have chosen to dedicate their 
careers to ensuring the rights of our most vulnerable citizens, those 
accused of a crime. As just one example, I am proud that I recently 
recommended Jane Kelly, a career Federal defender in Iowa, to the 
Eighth Circuit Court of Appeals, and I look forward to her speedy 
confirmation.
  While we rightly celebrate Gideon and the progress over the last 50 
years, we must acknowledge that we have much work still to do. As 
Attorney General Holder recently said,

       [a]cross the country, public defender offices and other 
     indigent defense providers are underfunded and understaffed . 
     . . Millions of Americans still struggle to access the legal 
     services that they need and deserve--and to which they are 
     constitutionally entitled.

  Even when a defendant is provided an attorney, too many are 
represented by attorneys who do not have the time, training, or tools 
to do their jobs properly. Many defendants are ``represented'' by 
lawyers who have hundreds of other cases and who lack requisite 
expertise and sufficient support staff. Too often the representation is 
perfunctory and so deficient as not to amount to representation at all.
  According to a 2011 report by the Justice Policy Institute, only 27 
percent of county-based public defender offices and 21 percent of state 
public defender systems have enough attorneys to meet national 
guidelines. Only 7 percent of county-based public defender offices have 
enough investigators to meet national guidelines, and 87 percent of 
small county-based public defender offices do not have a single full-
time investigator.
  As a result, too many defenders lack access to sufficient resources 
to interview key witnesses, collect or test physical evidence, or 
generally prepare a quality defense. A 2009 investigation by the 
Constitution Project, the National Legal Aid & Defender Association, 
and the National Right to Counsel Committee found 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.
  According to a Brennan Center report, the average amount of time 
spent by a public defender at arraignment is often less than 6 minutes 
per case. And, the National Law Journal article examining Gideon's 
anniversary highlighted the fact that in Wisconsin, private lawyers who 
are hired to represent indigent defendants are paid $40 an hour--
unchanged since 1978. In Maryland, a State court of appeals last year 
ruled defendants are entitled to counsel at bail hearings. Rather than 
paying to ensure this right, the State legislature repealed the law 
instead.
  Unfortunately, sequestration is exacerbating the problem. In Iowa, 
the Federal defender has notified the Federal courts that because of 
the sequester, each Federal defender employee will need to be 
furloughed for 20 to 24 days between April 8 and September 30. The 
Federal defender is being forced to close the Southern District Office 
on Mondays and the Northern District Office on Fridays. These furloughs 
and closings will put a strain on already overworked public servants 
and has the risk of jeopardizing the quality representation every 
defendant in Iowa deserves.
  When criminal defendants lack quality representation, there is a 
heightened risk of our justice system making egregious mistakes. We 
have learned all too well, especially with the advent of DNA evidence, 
that an unknowable number of genuinely innocent persons have been 
wrongly convicted. For innocent persons to lose their liberty or, in 
the case of the death penalty, their lives, is a travesty of justice. 
It is a national shame. And, as Attorney General Janet Reno once said, 
``in the end, a good lawyer is the best defense against wrongful 
conviction.'' There is no more telling example than Gideon himself. 
After the Supreme Court ruled in his favor, he was retried, only this 
time with a lawyer. The jury took 1 hour to acquit him.
  Recognizing that we must improve our system of representation for 
indigent Americans, I am proud to cosponsor the Gideon's Promise Act, 
introduced Monday by Senator Leahy.
  Not only does the basic right guaranteed for criminal defendants in 
Gideon five decades ago remain not yet fully realized, it is also 
outrageous that there remains no guaranteed right to counsel in the 
civil context. As James Sandman, president of the Legal Services 
Corporation, recently 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.


[[Page 4611]]


  This issue is personal for me. Before I was elected to Congress, I 
practiced law with Polk County legal aid in Iowa. I can honestly say 
the work I did with legal aid is some of the most important and 
rewarding of my career. I learned firsthand that, without access to an 
attorney, the poor are often powerless in the face of injustice and 
wrongdoing, even within a judicial system that purports to ensure equal 
justice under law.
  At the Federal level, since the administration of President Nixon, we 
as a nation have supported civil legal aid programs through the Legal 
Services Corporation. And, make no mistake: these programs have made a 
crucial difference to millions of low-income Americans. Recipients of 
LSC funding help clients secure basic human needs, such as wrongly 
denied Society Security benefits and health care. Low-income Americans 
receive aid with consumer, housing and employment issues. LSC-funded 
attorneys help parents obtain and keep custody of their children, 
assist parents in enforcing child support payments, and help women who 
are victims of domestic violence. In addition, LSC has greatly expanded 
its capacity to meet the legal needs of veterans, active-duty 
servicemembers and their families, and has been critical in providing 
legal assistance to Americans impacted by deadly natural disasters.
  Unfortunately, however, too many Americans today cannot afford 
critical civil legal representation. In many parts of the Nation, more 
than 80 percent of those who need an attorney go without one. 
Nationally, over 50 percent of applicants for federally funded legal 
services who request legal aid are turned away because programs lack 
adequate funding. In other words, American citizens are being denied 
justice not because of the facts of their case or because of governing 
law, but solely because they cannot afford an attorney. This is not 
justice. And, to state the obvious, it makes a mockery of the principle 
of equal justice under the law.
  I want to thank Senators Mikulski and Shelby for all of their hard 
work and effort with respect to the fiscal year 2013 appropriations 
bill and for protecting critical funds for LSC. That bill provided $358 
million for LSC, a $10 million increase over fiscal year 2012, which 
itself was a $56 million cut from fiscal year 2011. This is still far 
less than the amount appropriated in fiscal year 1995, which would be 
about $594 million in today's dollars, and even further below the 
amount appropriated in fiscal year 1981--about $800 million in today's 
dollars. But this week's bill was a critical increase in a difficult 
budget environment and I am grateful.
  At the same time, however, it is long past time for us as a nation to 
make clear that all Americans, whether wealthy or poor, have the right 
to legal representation. It was President Nixon who created the Legal 
Services Corporation and who said,

       I would suggest there is no subject which is more important 
     to the legal profession, that is more important to this 
     nation, than . . . the realization of the ideal of equal 
     justice for all.

  As my former Republican colleague Pete Domenici declared:

       I do not know what is wrong with the United States of 
     America saying to the needy people of this country that the 
     judicial system is not only for the rich. What is wrong with 
     that? . . . That is what American is all about.

  On Clarence Gideon's gravestone in Hannibal, MO, is a quote drawn 
from the letter he wrote to Abe Fortas, who was appointed to represent 
him before the Supreme Court. It reads, ``Each era finds an improvement 
in law for the benefit of mankind.''
  Directly across from the Senate stands the marble judicial temple of 
the Supreme Court, and above its entrance is engraved the most 
fundamental principle and ideal of our system of criminal justice. It 
says, simply, ``Equal Justice Under Law.'' Let us as a nation continue 
to strive to fulfill the promise of our Constitution, for both criminal 
and civil litigants. ``Equal Justice Under Law'' must be more than an 
aspiration chiseled on a marble facade; it must be a concrete reality 
for ALL of our fellow citizens.

                          ____________________