In the landmark case Gideon v. Wainwright, the Supreme Court acknowledged the “obvious truth” that “lawyers in criminal courts are necessities, not luxuries” given that “[g]overnments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.”1 Yet, almost fifty years later, the promise of Gideon remains unfulfilled. According to Justice Denied, a 2009 report of the Constitution Project’s National Right to Counsel Committee, public defense systems—which handle the vast majority of representation for defendants in criminal cases—fail to provide adequate representation for those the government accuses of crimes.2 Public defenders’ offices are understaffed, underfunded, undertrained, and overworked, and they often lack the oversight necessary to ensure constitutionally adequate representation for indigent defendants. As experts from the Cato Institute observed, “the great majority of defender systems are understaffed and underfunded; they cannot provide their clients with even the basic services that a non-indigent defendant would consider essential for a minimally tolerable defense.”3
When the government accuses, convicts, and incarcerates its citizens without providing them adequate counsel, it disrupts the basic structure of our adversarial system, endangering both its people’s constitutional rights and the rule of law. The inevitable consequence of a dysfunctional system is the conviction and incarceration of innocent people. Wrongful convictions not only unjustly deprive people of their liberty, but also risk public safety by allowing the real perpetrators to remain free. Moreover, without proper representation, many non-violent offenders are sentenced to inappropriately lengthy prison terms, unnecessarily driving up taxpayer costs.
The Administration and the members of the 112th Congress have an important opportunity to address the current crisis in indigent defense, and to realize the promise of the constitutional right to counsel. Reforms should be adopted to strengthen public defender training; increase transparency in federal grants to state criminal justice systems; create accountability for inadequate provision of representation to state indigent defendants; and increase independence for federal defenders. Each of these reforms is both constitutionally required and long overdue.