The Legacy of Gideon’s Promise on 60th Anniversary of Gideon v. Wainwright

By Alice Fontier

Sixty years ago on March 18, 1963, the Supreme Court handed down a landmark decision in Gideon v. Wainwright, declaring that all criminal defendants have a Constitutional right to an attorney regardless of their ability to pay. If defendants could not afford counsel, the Court said, the state would have to provide it.

This historic ruling was a major step forward for the rights of people facing the severe penalty of loss of liberty. Today, this right is largely taken for granted; we’ve all become familiar with the arrest scene in cop shows where the detectives intone, “You have the right to an attorney.” In fact, 80 percent of Americans accused of a crime today are indigent and rely on the right to a public defender.

But a right that isn’t respected is no right at all. By chronically underfunding public defenders, state and local governments have kept a thumb on the scales of justice — a scale already weighted against the Black and Brown people disproportionately represented in our country’s criminal and civil legal institutions due to systemic racism. That’s certainly the case in New York.

Public defenders provide the services that create true public safety. We keep families united, connect our clients to a wide range of much-needed services (such as childcare, mental health treatment and job training) and help people stay in their homes. In the state and city budget battles taking place this month, New York’s leading public defenders and civil legal services — including my organization, Neighborhood Defender Service of Harlem — are calling on Mayor Adams and Governor Hochul to live up to “Gideon’s promise” and allocate funds to ensure a high standard of quality legal representation for low-income New Yorkers.

Right now, we struggle to provide our public defenders a meaningful living wage, while at the same time paying our organization’s rent, healthcare, pension, technology, and other operating needs that have continued to rise. As New York Magazine reported recently, some defenders moonlight as Uber drivers to make ends meet, while others have reluctantly left public service for jobs that pay a living wage.

Despite the financial strains on public defenders, New York is a national leader in providing true holistic defense. Progressive city and state leaders — prompted by dedicated advocates –recognize that having the right to a lawyer in eviction, immigration, and family court proceedings is just as needed as having an advocate stand up for you in criminal court:

• In 1975, the New York State Legislature codified the right to assigned counsel in a range of family law proceedings involving “the infringements of fundamental interests and rights, including the loss of a child’s society and the possibility of criminal charges.” Fourty-four years later, a report for the state’s Commission on Parental Representation identified the same deficiencies of underfunding found in the criminal defense system. But the report also named NDS and our sister family defense organizations in New York City as “oases of excellence” in parental representation, even as the New York State’s Office of Indigent Legal Services’ caseload standards demonstrate that we are woefully underfunded.
• In 2013, the New York Immigrant Family Unity Project (NYIFUP) became the first program in the country to provide free, high-quality legal representation to every low-income immigrant facing deportation in the City of New York, as well as to detained New Yorkers facing deportation in the nearby immigration courts in New Jersey. Having a lawyer makes a huge difference: detained immigrants with lawyers win their cases at more than 10 times the rate of those without legal help. The New York City Council granted this program full funding in 2014.
• In 2017, New York City became the first city in the country to pass a Right to Counsel law for tenants. Since then, landlords sue tenants less and 86 percent of tenants with a right-to-counsel lawyer won their case and were able to remain in their homes. Now advocates are fighting for a statewide Right to Counsel law for tenants.

It only makes sense to provide a right to counsel in civil as well as criminal proceedings because — as public defenders know all too well — these cases are so often intertwined. Merely being accused of a crime can result in loss of income, loss of housing, child services investigations, ICE deportations, and family separation. Regardless of how a person becomes entangled in the legal system, the consequences on people, families, and communities are devastating.

Recognizing the intersectional problems plaguing public defense, 30 years ago Neighborhood Defender Service of Harlem pioneered a holistic model that involves an entire team fighting on a client’s behalf, including criminal and civil attorneys, family defense attorneys, advocates, social workers, investigators, legal advocates, law school and social work interns, and pro bono attorneys. This approach allows our defense to extend well beyond the courtroom, with robust social services and comprehensive teams meant to protect our clients from the damages of criminal legal proceedings.

Today, 60 years after the momentous Gideon decision, it is time for public defense funding to get holistic, too. The right to counsel should exist — with adequate funding — in all legal proceedings in which individuals without means must defend themselves against the mighty power of the state or other well-resourced interests.

To quote the words inscribed on Gideon’s headstone, which he wrote in a letter to his attorney, future Supreme Court Justice Abe Fortas: “I believe that each era finds an improvement in law for the benefit of mankind.” That statement should be the true legacy of Gideon’s promise.

Alice Fontier is the Managing Director of Neighborhood Defender Service of Harlem.