The relationship between poverty and the nation’s prison and jail population has been adequately demonstrated by research studies. Less appreciated are the more nuanced, subtle governmental decisions that exacerbate that relationship, and which we are slowly coming to realize are detrimental in a society that aspires to equal justice.
Gideon’s Trumpet is a 1964 book by Anthony Lewis describing the story behind the 1963 landmark court case Gideon v. Wainwright, in which the Supreme Court ruled that criminal defendants have the right to an attorney even if they cannot afford one. A made-for-TV movie of the same name, based on the book, was released in 1980, starring Henry Fonda as Clarence Earl Gideon, José Ferrer as Justice Abe Fortas, and John Houseman as Chief Justice Earl Warren.
The title is a play on words, using the defendant’s last name and invoking the biblical story in which Gideon ordered his small force to attack a much larger enemy camp. Gideon’s army carried trumpets and concealed torches in clay pots. When the call to attack came, the noise and light they made tricked their enemies into thinking that a much larger army was attacking them. Thus, Gideon won the battle with little actual fighting.
The Supreme Court applied the provisions of the Sixth Amendment (which guarantees criminal defendants the right to counsel) to arrive at its conclusion concerning the right of counsel in criminal proceedings:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Over the ensuing years following the Gideon decision, state jurisdictions met the mandate by creating panels of attorneys, paid by the state, to be appointed by criminal courts as defense counsel for indigent defendants.
Over the ensuing years following the Gideon decision, state jurisdictions met the mandate by creating panels of attorneys, paid by the state, to be appointed by criminal courts as defense counsel for indigent defendants. These were often called assigned counsel and functioned essentially as voluntary counsel to defendants, often leading to claims by convicted individuals that the defense was ineffective. A successful challenge may also be a ground for voiding a waiver of the right to appeal that a defendant may have signed as part of a plea agreement with prosecutors.
The Supreme Court has, however, issued some unsettling decisions affirming state and lower federal court decisions where, among others, defense counsel
–fell asleep during the prosecutor’s cross-examination of the defendant;
–was heavily intoxicated on alcohol throughout the trial;
–was in extremely poor health and senile;
–was mentally ill (and even discussed his delusions in opening argument); and
–was himself a convicted felon whose sentence included community service in the form of defending accused murderers (despite his lack of experience in such cases).
Virginia in 2004 created formal offices of attorneys to offer criminal defense to indigent clients.
As a step to equalizing the scales of justice and in response to the wave of criminal justice measures in past decades (three strikes laws, minimum sentencing), a number of states, including Virginia in 2004, created formal offices of attorneys to offer criminal defense to indigent clients. The Virginia Indigent Defense Commission (VIDC) was statutorily established, replacing the Public Defender Commission, to protect the Constitutional right to counsel for people who cannot afford to hire their own lawyer. VIDC oversees 25 public defender offices, three satellite offices, and four capital defender offices across Virginia, with a central administrative office that certifies attorneys seeking appointments in criminal cases.
Prosecutorial offices have received substantially greater funding compared with defense counsel…. Few would dispute that higher starting salaries attract more accomplished attorneys following four years of law school. The supplemental funding operates to continue the thumb of government on the scales of justice…. Legislation recently introduced in the General Assembly to create parity in the supplemental funding from localities was shelved for further study. Not unsurprisingly, the measure was opposed by the state’s association of Commonwealth’s Attorneys.
In its infinite and inestimable wisdom, the Commonwealth also adopted legislation authorizing localities to provide supplemental funding to the prosecutors (Commonwealth’s Attorneys) and public defenders at the discretion of those localities. The result has been that prosecutorial offices have received substantially greater funding compared with defense counsel. For example, publicly sourced data indicate that attorneys in Virginia earn between $82,000 and $109,000 annually, while Commonwealth’s Attorneys average $71,000. Virginia public defenders, in contrast, average $53,000 annually, in a range from $48,000 to $60,000. Few would dispute that higher starting salaries attract more accomplished attorneys following four years of law school. The supplemental funding operates to continue the thumb of government on the scales of justice.
Legislation recently introduced in the General Assembly to create parity in the supplemental funding from localities was shelved for further study. Not unsurprisingly, the measure was opposed by the state’s association of Commonwealth’s Attorneys. Equality under the law, like most issues where equality is a value, cannot be mathematically enforced or measured, but its effects are visible and palpable. Fairness, on the other hand, is a value that folks appreciate and understand.
Mr. Gideon’s trumpet might sound a great deal louder were defense counsel in the Old Dominion constitutional officers similarly elected as are Commonwealth’s Attorneys. Political competition for the two offices offers the electorate opportunities to debate public policy choices in the criminal justice system. Elimination of supplemental funding by localities would also contribute to a more fair system of staffing criminal justice functions across the state, while avoiding an advantage created for more prosperous jurisdictions.