We all know the famous line, repeated endlessly on TV Cop Shows like 'Law and Order' and many of us by the cops in our cities and states. But is the promise actually fulfilled in any meaningful way for those who cannot afford to hire a lawyer?
In the ground breaking case Gideon v. Wainwright in 1963, the Supreme Court held that our Constitution mandates that anyone accused of a felony should have guaranteed access to legal counsel to represent them, even if they can not afford one. This promise was meant to ensure that the poor of our nation have equal access to justice.
Fifty years after later this promise remains a pathetic hoax played on Americans in all 50 states. Around 80% of those charged with a felony cannot afford to hire a lawyer. The public defender systems on which millions of average Americans rely on are grossly underfunded and staffed by uncommitted and incompetent lawyers. As a result most individuals charged with crimes plead guilty in hearings that often last only minutes, after sometimes having just met their attorney.
Our criminal justice system needs to do better. Over the next year, the ACLU has said they will share stories that illustrate the state of indigent defense 50 years after Gideon. Their hope is that these real-world accounts will motivate us to re-examine our constitutional duty to provide zealous, competent, and well-resourced advocates for those accused of a crime. There is no doubt many of us will care and be motivated to start an email petition or perhaps even an actual in person protest. My guess is it will fall on deaf ears in state capitals and Washington D.C. whose only real concern is for what the super rich and powerful want.
What needs to happen, but sadly won't any time soon due to the pathetic nature of our pseudo democracy, is several things:
We need to switch to a loser pays system. Why should only the rich be entitled to an adequate defense? In a loser pays system a person charged with a crime could hire a legal dream team like OJ Simpson did with the knowledge once you won the local DA would have to pick up the tab. This would also have the benefit of stopping malicious prosecutions like the Aaron Swartz case. Often prosecutors with an agenda will have a dual goal of not only putting the person in jail, but bankrupting them with endless legal expenses. If the prosecutor knew they had the burden of having to pay the entire costs of both sides if they lost they would be far less likely to use this tactic.
The second thing we need to do is abolish the concept of blanket legal immunity for the law enforcement community and the judiciary. Policemen, prosecutors, and judges need to be held to the same legal standard the rest of us are. Police would still have the same rights to use deadly force when called for, but if they misused it then they should be subject to civil and criminal charges just like any other person. The same standard also needs to be applied to prosecutors and judges. The cruel hoax that we have a system of checks and balances is so broken that no minor reform could ever hope to fix it.
Last we need to create a new category of law suits, criminal suits. The Obama administration's blatant refusal to prosecute the worlds worst super criminals on the laughable grounds 'it might harm the economy' should have made it abundantly clear to even the most hardened conservative that we have a sliding scale justice system. For those on the top there is literally no law they can break that will result in one millisecond behind bars, for those on the bottom of the scale there is literally no crime that won't result in a world of hurt from our injustice system.
The Gideon v. Wainwright decision was a good first step, but 50 years later the sad reality is that it has fallen far short due to purposeful neglect to properly fund legal defense, and a judiciary who have come to think their job is help the prosecution rather than than being an honest broker.