Unlike Gideon’s biblical victory over a larger army (Judges 7:16-22), neither Virginia’s nor the nation’s criminal justice system has succeeded to a clear and convincing standard of equal justice for all. Virginia’s experience with the frailties and inconsistencies of its criminal justice system is no different, in many respects, than those of other states. The Commonwealth has recently grappled legislatively with a variety of criminal justice issues, including reduction in prison terms for good behavior, review of parole board decisions, bail reform, and felony threshold, among others.
One response [to the frailties and inconsistencies of our criminal justice system] has been the creation of public defender programs to afford accused defendants with quality defense counsel, in part as a step to ensure the reliability of the outcomes of criminal proceedings.
One response – a more affirmative one say some – has been the creation of public defender programs to afford accused defendants with quality defense counsel, in part as a step to ensure the reliability of the outcomes of criminal proceedings. Earlier this year, the General Assembly authorized the establishment of a public defender’s office in Prince William County, which joined 28 other similarly established agencies in the Commonwealth. .
Skeptics have long asked: Why should the state prosecute and defend criminal defendants at the expense of the public? It’s a fair question, the answer to which requires a look at Constitutional provisions and decisions by the Supreme Court. Underlying an examination of these two components, however, is recognition of an overarching societal value reflecting the nation’s commitment to fairness and equity, especially in criminal matters. Not expressed or even implied in our Constitution is the cardinal requirement that criminal verdicts must be rendered based upon a finding “beyond a reasonable doubt” by a unanimous jury. Public defenders function as guarantors of that principle and faithfulness to its adherence.
At the Chicago World’s Fair in 1893, Clara Shortridge Foltz, California’s first female attorney, outlined a radical argument, advocating that the burden of the indigent criminal defendant should be shouldered by the government. Foltz said,
For the conviction of the accused every weapon is provided and used, even those poisoned by wrong and injustice. But what machinery is provided for the defense of the innocent? None, absolutely none.
Inherent in that statement is, of course, the essential value of fairness, equity, and the presumption of innocence until proven guilty beyond a reasonable doubt by a unanimous jury. This two-part standard was absorbed into the American legal system centuries ago and is rooted in Christian theology and English common law.
Nor was it primarily intended to protect the accused, as depicted in our popular culture. Rather, strange as it may sound and seem, the reasonable-doubt formulation was originally concerned with protecting the souls of the jurors against damnation for the possibility of making a mistake. Verdict unanimity was later grafted as a further measure to lend comfort to the consciences of jurors and engender trust for the process within the larger society. Unanimous decisions by juries of peers also insulated judges from exercising unilateral verdicts or influence in criminal proceedings while, at the same time, reflecting the voice of the larger community.
To this nucleus of core values, the US legal system was gifted with a Bill of Rights as additional procedural safeguards. Modern experience with the frailties of the criminal justice system with respect to juveniles, revelations from DNA and other evidence, and racial disparities, have all called into question the credibility and reliability of the criminal justice system itself, but most especially the doubt and unanimity criteria. Criminal defendants may claim their right to silence or not to testify against their own interest under the 5th Amendment. The 6th Amendment guarantees the rights of the accused to a speedy and public trial; the right to have the assistance of counsel; an impartial jury; the right to know the nature and cause of the accusations against them; and the right to confront accusers and to have compulsory process to call witnesses on their behalf. The 8th Amendment protects individuals against excessive bail and against cruel and unusual punishment.
These individual and personal guarantees reflect a penumbra in which society’s moral conscience could render judgments of fellow citizens with some assurance that the judgments were appropriate, or, in the language of the Bible, right and just. Without reference, direct or indirect, to this principle, the nation’s legal system has continuously evolved to function in the interstice between the individual and society. Perhaps this is the symbolism of the scales of justice.
The Supreme Court, in Gideon v. Wainwright (1963), faced the challenge of an imprisoned offender who maintained that the right to counsel guaranteed by the 6th Amendment essentially did not exist if a defendant [in state courts] could not afford counsel.
Seven decades after Clara Foltz enunciated her conviction, the Supreme Court, in Gideon v. Wainwright (1963), faced the challenge of an imprisoned offender who maintained that the right to counsel guaranteed by the 6th Amendment essentially did not exist if a defendant could not afford counsel. Prior to Gideon, the Court had found under the 5th and 6th amendments that indigent defendants were entitled to counsel in federal cases. Now that guarantee was to be extended to state courts as well, as essential for a fair trial and due process of law. The high Court’s ruling was summarized:
[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provide for him. This seems to us to be an obvious truth.
In ensuing years, the high court has determined that mentally challenged offenders unable to participate in their own defense under the 5th Amendment may not be tried. In 2005, the Court ruled that youths under the age of 18 could not be subjected to capital punishment.
The evolution of both procedural and substantive due process in US criminal justice continues to be reflected through the prism of ensuring the conscience of society that it can have confidence in the process and its outcomes. The resources, authority, and weight of government criminal prosecutions present an awesome challenge to an accused. Gideon, its progeny, and related core guarantees, have spawned public defenders in federal and state systems.
As the arc of criminal justice reform unfurls, another question arises concerning society’s investment in a more fair and equitable system wherein public defenders are elevated to the stature of elected state prosecutors. At present, no state has an elective office of public defender but all have elected prosecutors supported by police resources and funded by the public.
Notably, the landmark Gideon case only gives an indigent criminal defendant a right to be represented at trial and upon the first appeal. But the Supreme Court has held that there is no right to representation for discretionary appeals or post-conviction collateral attacks such as habeas corpus. In other words, an indigent convicted criminal who loses his trial and first appeal is on his own afterwards, no matter the issues challenged in the conviction. In Virginia, with a few exceptions, there is no automatic right to appeal from the trial court of record to an appellate court. One must petition for a writ of appeal, and, if the court grants the writ, the court will hear the appeal on the merits.
Across the US, public defender agencies are ethically bound to be independent and not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys. One of the most well established statewide public defender systems is in Wisconsin. The Wisconsin State Public Defender has been used as a model for other states and several countries. Wisconsin has a program that uses both staff attorneys and appointments to attorneys in private practice. State public defender systems can vary widely from state to state, county to county, and among federal defender organizations.
Eric Holder, United States Attorney General from 2009 to 2015, called the current issues of the public defender system a state of crisis and saw the current system as a failure to uphold the 6th Amendment as well as Gideon’s promise to society. An elected public defender would fulfill the principles of “beyond a reasonable doubt,” unanimity, and the Bill of Rights. It may be that this is a bridge too far at the present time, but it is one that ought to be in the vision of current broad reforms of the criminal justice system.