A Key Legal Right at Risk

By Walter F. Mondale
The Washington Post
March 12, 2009

More than 45 years ago, as attorney general of Minnesota, I joined with the attorneys general of 21 states in asking the Supreme Court to ensure that counsel would be appointed for all people facing criminal charges who could not afford it. The court answered our plea. Yet today, its historic decision in Gideon v. Wainwright is at risk.

In Gideon, the Supreme Court ruled that Florida violated the Constitution when it refused to appoint counsel for Clarence Gideon, a defendant who lived in a rooming house and had just $25 to his name. The opinion recognized the ''obvious truth'' that ``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.''

Yet states across the country routinely fail to appoint counsel to people who are genuinely unable to afford representation on their own. A report published by the Brennan Center for Justice at NYU Law School last fall, ''Eligible for Justice,'' found that if Gideon were to face criminal charges in Florida today, he might well be denied a public defender. Under Florida law, he could be disqualified for counsel if he has assets exceeding $2,500 (excluding a house), a car valued above $5,000, or had posted bail of more than $5,000, even if none of those assets permitted him to pay the retainer -- often several thousand dollars -- that defense lawyers routinely charge.

Even in Minnesota, things are grim. The Office of the State Public Defender absorbed a $1.5 million budget cut in 2008 and faced a $4.7 million shortfall at the end of fiscal 2009. The office announced late last year that it may need to cut 61 full-time equivalent attorney positions.

Sadly, Gideon's chances of getting counsel would be worse elsewhere. In New Hampshire, he could be found ineligible for counsel if he had a home valued at more than $20,000, even if he could not sell the home in time to finance his defense and even if selling it would leave him homeless. Courts in Virginia could deny him counsel because of the amount of money possessed by family members, even if Gideon had no power over that money.

These standards effectively work to deny counsel to people who truly cannot afford to hire representation. As a result, people are forced to defend themselves and can be wrongly convicted. That is what happened to Clarence Gideon. In his first trial, in which he represented himself, he was found guilty and sentenced to five years in prison. After the Supreme Court required the appointment of counsel, he was retried and acquitted.

A number of lawyers groups, led by the American Bar Association, have endorsed an expansion of the right to counsel recognized by Gideon to noncriminal matters where important legal rights, such as loss of housing, are at stake.

Many European countries provide such representation to indigent civil litigants. The backtracking that we are experiencing in the area of criminal representation undermines these efforts to move forward in the civil area. Our justice system depends on the idea that everyone is to be treated fairly, but a lack of resources is affecting the progress the Gideon decision brought to our criminal justice system and is blocking progressive efforts to extend the right to counsel in certain civil cases.

This month marks the 46th anniversary of the ruling in Gideon v. Wainwright. It is crucial that the states rededicate themselves to providing competent defense counsel to all people facing criminal charges who cannot afford to pay. The federal government, too, has an important role in providing the states with technical assistance, monitoring their compliance and enforcing the constitutional right to counsel. The promise of Gideon is ringing hollow, both for defendants, who count on competent counsel for their freedom, and for our society, which counts on the courts to achieve fair and reliable results. We cannot move forward until we stop the erosion of Gideon's promise to criminal defendants. My hope is to celebrate the 50th anniversary of Gideon -- not to have to use that occasion to mourn our continuing failure to heed its call.

Walter Mondale, a Democrat, served as vice president in the Carter administration and as a two-term U.S. senator from Minnesota.