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Equal Injustice 50 Years After Gideon

Equal Injustice 50 Years After Gideon

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March 18, 2013

Today is the 50th anniversary of the historic Supreme Court decision Gideon v. Wainwright , which established that the government, if it wishes to press serious criminal charges against an individual who cannot afford legal representation, must provide an attorney for him.

There are a number of questions one can ponder about the moral justification of that legal rule. For example, is mounting a defense to criminal charges essentially a private act, such that forcing the taxpayers to fund it violates their rights? Or is the defense part of the government’s function of providing a court system to adjudicate rights violations, such that funding it with tax money is no more improper than paying the salaries of the judge and the prosecutor out of taxes? If the latter, do all defendants have the right to a funded defense, even if they have the money to pay lawyers? Are innocent defendants who have to pay the cost of their own defense effectively being forced to pay a special tax to subsidize the prosecution’s mistake?

And if making sure defendants have adequate representation justifies burdening the taxpayers with the cost of it, how can it possibly be justified for the government to cut some defendants off from their lawyers , or undermine some defendants’ ability to trust their lawyers ? I refer, of course, to defendants charged (and potential defendants at risk of being charged) with committing crimes in a corporate setting.

But perhaps the most disturbing thing is to see Attorney General Eric Holder celebrating Gideon and Clarence Earl Gideon, as he did in a speech on Friday. Holder called the case "a watershed moment ... in our nation's enduring pursuit of equal justice for all."

This is the same Eric Holder who, as Roger Donway recounts (on page 10 of this PDF ), once urged federal prosecutors to consider, when deciding whether to criminally charge a corporation, whether the company seemed to be "protecting its culpable employees and agents"—and specifically said that advancing attorney's fees could be held against a company, at least in certain cases.

And this is the same Eric Holder last seen on this blog promoting plea bargaining as the reasonable thing to do when you face a long potential sentence on charges you think are unjust. If you take a plea, even if you have a lawyer, he doesn’t get a chance to argue your innocence: innocent or guilty, you suffer the punishment you submitted to in order to escape the greater one that was threatened. If you conduct your “defense” that way, having a lawyer may help you get the best plea deal you can get, but it won’t help you get a fair trial: a trial is what plea bargaining forecloses.

Yet if Gideon has any justification, it is as a means to providing a fair trial—a trial reasonably well suited to reach a just result, a trial where the defendant has a suitable opportunity to defend himself. Plea bargaining, if it achieves a just result, does so almost by chance. Holder mentions in his speech the problem of unjust convictions, but by running a system geared more to plea bargaining than to trials, he is almost indubitably producing unjust convictions as a matter of routine.

Guaranteeing an attorney while undermining the right to trial is not a way of promoting fair trials or justice, equal or otherwise. And it does no honor to Clarence Earl Gideon, who, when he finally faced a jury with an attorney by his side, was found not guilty .

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