“My actions are my only true belongings. I cannot escape the consequences of my actions. My actions are the ground upon which I stand.”
—Thich Nhat Hanh
Under the Sixth Amendment of the United States Constitution, a person accused in any criminal prosecution has the right to the assistance of counsel. In 1963 the United States Supreme Court held in Gideon v. Wainwright, 327 U.S. 335 (1963), that the accused individual has a right to counsel even if he or she cannot afford to hire one. Since Gideon, courts have come to understand that the right to counsel means that the accused is entitled to the effective assistance of competent counsel—see McMann v. Richardson, 397 U.S. 759 (1970). Yet over 50 years later, there is a divide between the spirit of the Supreme Court’s landmark ruling and the practice of legal representation for the nation’s indigent accused.
With over 2.3 million people currently behind bars, the United States’ criminal justice system is larger than ever.1 One in four adults in America has been convicted of a crime.2 According to the American Bar Association (ABA), anywhere from 60 to 90 percent of people charged with crimes in the United States need publicly funded attorneys.3 Yet for many of those accused, the promise of the Constitution, Gideon, and what they embody has been largely unrealized. Across the country, people charged with crimes are being deprived of their constitutional right to counsel in ways large and small, whether it be total deprivation of the opportunity to consult with counsel4 or assignment to an attorney that has only seven minutes to spend on each misdemeanor case.5
In 2007 the Bureau of Justice Statistics found that three out of four county-based public-defender offices reported that they did not have enough attorneys on staff to handle their caseloads.6 In most criminal cases, the accused is brought before a judicial officer who decides whether he or she will be released, held on bail, or held without bail. However, in many jurisdictions across the country, poor people are not provided the assistance of counsel at this first appearance. Forced to negotiate with prosecutors and judges for their liberty, many people plead guilty without the advice of a lawyer. Of those who do not plead guilty, many are held in jail and must wait for days or even weeks for an attorney to be assigned to their case.7
Even in courts where a public defender is appointed at the first appearance, that attorney is generally under severe time constraints and pressure to resolve cases and, accordingly, has limited time or the resources to devote to providing competent counsel. According to a report by the Brennan Center for Justice, public defenders often spend less than six minutes on cases where clients plead guilty and are sentenced at the first appearance.8 Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads.9 As a result, defenders are often unable to assess cases and properly advise their clients or represent their interests. When public defenders have so many cases that they are forced to choose between the depth of the representation they can provide and the number of clients that are able to see the judge in a given arraignment shift, justice is not served. Pressure from court personnel to process cases quickly compounds the problem and can make it even more difficult for public defenders to provide effective representation.
Among system stakeholders and the public alike, there appears to be a general lack of awareness about what the right to counsel entails and the reality that it is not being upheld as directed by the Constitution and Gideon, according to “Americans’ Views on Public Defenders and the Right to Counsel,” a recent report commissioned by the Justice Programs Office on behalf of the Right to Counsel National Campaign (R2C).10 R2C seeks to educate the public and lawmakers by starting and maintaining a national conversation about the importance of public defense. To engage in meaningful conversation and promote sustainable change, the public and all system actors must recognize the challenges embedded in our current public-defense-delivery systems and play a proactive role in overcoming them to ensure the right to counsel.
R2C is a public-awareness initiative led by the Justice Programs Office. It uses value-based communication tactics to inform policymakers, criminal justice stakeholders, and the public about the importance of carrying out the Sixth Amendment’s right to counsel; the ways in which this right is not being implemented; the roles everyone from law enforcement officers to prosecutors to judges and court managers play in ensuring that the constitutional right to counsel is upheld; and how to reform the public-defense system with low-cost or no-cost policy solutions. Court administrators are uniquely situated to play a meaningful role in ensuring effective delivery systems that uphold the constitutional right to counsel. Court administrators are able to professionally manage internal operations, deal with complicated organizational systems, help court systems handle large workloads efficiently, and increase access to justice and services to the public—including access to effective representation.11 Understanding constitutional principles and how they play out in the courtroom is one of the National Association for Court Management’s Core Competencies, and administrators play a key role balancing individual justice and caseflow management.12 Promoting fair and accessible justice is entrenched in the role of court administrators, which in turn promotes access to effective defense counsel.
Before I joined the JPO to work on the Right to Counsel National Campaign, I was a public defender in New York City. I had the privilege of meeting thousands of clients on the day their lives were first altered by the criminal justice system and to represent them throughout the hours, months, or years that their cases wore on. For most of my clients, the effect of the criminal case on their lives was tangible from the minute they were arrested, regardless of how long the court proceedings lasted. Usually the devastating consequences to their jobs, homes, and families occurred before any of the charges had been established, let alone proven beyond a reasonable doubt.
During my first year as a public defender, I was overwhelmed by the size and the magnitude of the criminal justice machine. That feeling of being overwhelmed clashed with the idealism that had brought me to public-defense work and resulted in a pattern of behaviors that was at once frenetic and disillusioned. For example, the arraignment courtroom I worked in heard cases 18 hours a day, 7 days a week, churning through hundreds of thousands of cases per year. When I first learned this, I wondered how the courthouse could possibly process that many cases, each attached to a live human being, and purport to deliver justice to any of them, let alone all of them. I arrived ready to protest, to shake the shoulders of every person I encountered until they recognized the injustice they were perpetuating. Yet when I walked into the courtroom for the first time, I was stunned by its size, its machinery, and its steely pace. I felt if I did not stay alert, fall into step, play my part, and keep up, I most certainly risked being swallowed up by the machine myself.
Luckily, as the months wore on, the frenetic disillusionment of that first year gave way to a number of realizations about the intricacies in the system. I started to notice the places it was malleable and the moments where there was room for me to make a unique imprint for the better. In fact, I came to appreciate the myriad roles, large and small, that all stakeholders in the justice system play in determining the outcomes of each case. This mark is left by each stakeholder on every case, whether they realize it or not. The mood of a judge can determine a person’s liberty.13 A typo by a clerk on court papers can have lifelong consequences on a person’s criminal record. The encouragement of a court manager to a judicial officer to allow the defense the time they need to hear and advise their client can change the way that client perceives the justice system.
This summer at the National Association for Court Management (NACM) conference, I spent a few days reflecting exclusively on the ways that court managers and court administrators can impact the right to counsel and public defense. During the conference, the R2C National Campaign hosted a roundtable with court managers from all over the country to discuss the roles that they and their peers play in making their courts more just in ensuring that the right to counsel is upheld.
During the roundtable, participants expressed an impressive amount of knowledge and insight about the barriers that stand in the way of providing effective public defense in their courts. Overall, participants were well-informed and deeply committed to ensuring the fair administration of justice and the right to counsel. Many of the participants supported recent local efforts to include defenders in justice-system planning and policy conversations. They discussed the steps they had taken to share access to court data, digital filings, and digital evidence (body camera videos, especially) with defenders. They expressed a strong belief that ensuring the right to counsel is a responsibility of courts and court administrators. They agreed that upholding justice and fairness is central to their work and that upholding the right to counsel is a corollary of that responsibility.
However, participants also expressed a lack of surety about how they can be most effective in ensuring the right to counsel within their current roles, or how much influence they have in their court systems. They identified presiding judges or local coordinators as the true decision makers and said that building consensus among judges is the most crucial step to policy change. They discussed the influence judges have over every aspect of court culture, including whether defenders have adequate time, funding, and opportunity to zealously represent their clients.
I found the discussion both impressive and tragic. Here these court managers were, listing the ways they had organized themselves and their peers to ensure the fair administration of justice and effective public defense; yet it was as if the churning of the machine had drowned out the ripples of their courageous actions so quickly that they did not even get a chance to see that they had made a difference. While court culture is predominantly dictated by judges, each criminal-justice player can reinforce, reject, or alter that culture by shaping the experiences of those affected by it. In so doing, their impact is immeasurable. By insisting on the early assignment of counsel, a court administrator can ensure that a person’s constitutional rights are upheld, and in many cases, that their liberty is secured14 and tax dollars are saved.15 By providing a defender access to timely discovery, a court manager can influence the number of days a person spends in jail and, as a result, add time to their life span.16 By encouraging a judge to permit defense counsel adequate time to interview and advise their clients, a court manager can ensure the accused receives the representation to which they are entitled.
It does not necessarily require great acts of courage or defiance for court managers to create lasting and meaningful change in the experiences of those most deeply impacted by the justice system. The significance of simple acts of kindness, compassion, and humanity magnify in their power and their remarkability within the criminal courthouse. When I was a public defender, I worked with a court clerk named “Eddie” (name has been changed for anonymity) who found a way to make almost every client who came into his courtroom smile. Whether it was a reassuring nod to indicate their case would be called soon or a whispered joke while writing out their adjournment slip, Eddie found a way to add some levity to the experience of a place where smiles were rare and laughter was literally forbidden. No matter how disappointing or frustrating or scary the court experience had been for the clients, if Eddie was in the courtroom, he was often able to ensure they walked out of court feeling okay. Most notable of all? Eddie worked for one of the meanest judges in the courthouse.
Research shows that most people care more about procedural fairness—the kind of treatment they receive from the court stakeholders they interact with—than they do about the legal outcome of their case.17Accordingly, procedural fairness is a critical part of understanding how each client understands, perceives, and evaluates their experience within the criminal-justice system. Psychology professor and researcher Tom Tyler posits that there are four basic expectations that encompass procedural fairness: 1) The ability to have their voice heard; 2) Transparent, consistent and neutral legal principles, applied by unbiased decision makers; 3) That they are treated with respect; and 4) That the authorities presiding over their case are benevolent, caring, and sincerely trying to help.18
People are more willing to accept outcomes—negative or positive—in their case if they feel that the decision was arrived at through a fair method. While this does not mean that people are happy if they lose their case, it does mean that they are more willing to accept and abide by the decisions of a court who they perceive to have treated them fairly. These clients’ views of the court system and the law are more favorable following an experience in which they perceive their case was handled fairly.
Effective public defense is a critical piece of procedural fairness. As Kim Ball, director of the Justice Programs Office, wrote in her March 2017 “Director’s Message” for Americans’ Views on Public Defenders and the Right to Counsel, “Quality legal representation is the foundation to the fair administration of justice and the legitimacy of the criminal justice system. When our system denies this fundamental right, the communities whose lives are most impacted by the system are less likely to perceive this system as fair.”19 Public-defense providers are essential players both in the court process and in shaping their clients’ perceptions of the administration of justice. Through effective representation, the voices of the accused are heard, reinforcing trust in the legitimacy of the court process. Working together, court administrators and defense attorneys can change how accused people, their friends, and loved ones interact with and perceive the criminal justice system.
Most court managers cannot change the outcome of any given court case, nor can they single-handedly correct a system that lends itself to daily ordinary injustice.20 But working together with public defenders in preserving all clients’ fundamental rights, they can affect the experience of individual clients in ways large and small. They can demonstrate through their behavior that they presume the innocence of all accused clients. They can treat the accused with the respect and kindness they might treat a friend or family member. Most critical to the right to counsel, they can ensure a defense attorney is present at each court hearing and that the attorney has the time necessary to ensure the client feels heard. They can, through their actions and their attitudes, make small changes to the culture of each courtroom their work touches. In so doing, they can uphold both the right to counsel and procedural fairness at every court appearance, ultimately changing the justice system—and the experiences of those most deeply impacted by it—for the better.
About the Author
Zoë Root is the senior policy counsel at the Justice Programs Office (JPO), a criminal justice policy and reform center in American University’s (AU) School of Public Affairs in Washington, D.C. JPO houses the Right to Counsel National Campaign. Root is also an adjunct instructor in AU’s Department of Justice, Law and Criminology. During her time as a public defender at the Bronx Defenders, she represented thousands of clients facing felony and misdemeanor charges, trained and supervised first-year attorneys, and served as the director of the Prostitution Conviction Vacatur Project, dedicated to helping sex-trafficking survivors vacate their criminal convictions. She earned her JD at Northeastern University School of Law and graduated with a BA in Psychology from Vassar College. For more information about the Right to Counsel National Campaign, go to www.rtcnationalcampaign.org, and follow R2C on Facebook at The Right to Counsel National Campaign, on Twitter @right2counsel, and the hashtag #right2counsel.
- Peter Wagner and Bernadette Rabuy, “Mass Incarceration: The Whole Pie 2016,” report, Prison Policy Initiative (March 2016).
- Michelle Natividad Rodriguez and Maurice Emsellen, “65 Million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment,” report, National Employment Law Project (March 2011).
- Marea Beeman, “Using Data to Sustain and Improve Public Defense Programs,” American Bar Association, 2012; Spangenberg Group, “Contracting for Indigent Defense Services: A Special Report,” Indigent Defense Series no. 3, Bureau of Justice Assistance (April 2000).
- Douglas L. Colbert, “When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings,” The Champion (June 2012).
- National Association of Criminal Defense Lawyers. “Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts” (April 2009).
- Lorelei Laird, “Starved of Money for Too Long, Public Defender Offices Are Suing—and Starting to Win,” ABA Journal (January 2017).
- Colbert, supra n. 4.
- Thomas Giovanni and Roopal Patel. “Gideon at 50: Three Reforms to Revive the Right to Counsel,” report, Brennan Center for Justice, New York University School of Law (2013).
- Belden Russonello Strategists, “Americans’ Views on Public Defenders and the Right to Counsel,” report, Right to Counsel National Campaign, American University, Washington, D.C. (March 2017).
- National Association for Court Management, The Court Administrator: Court Administration: A Guide to the Profession (Williamsburg, VA: National Association for Court Management, 2016).
- Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” Proceedings of the National Academy of Sciences 108 (2011): 6889-92.
- Douglas L. Colbert, Raymond Paternoster, and Shawn Bushway, “Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail,” Cardozo Law Review 23 (2001-02): 1719.
- Christian Henrichson and Ruth Delaney, “The Price of Prisons: What Incarceration Costs Taxpayers,” Federal Sentencing Reporter 25 (2012): 68.
- Christopher Wildeman, “Incarceration and the Population Health in Wealthy Democracies,” Criminology 54 (2016): 360-82.
- M. Somjen Frazer, “The Impact of the Community Court Model on Defendant Perceptions of Fairness: A Case Study at the Red Hook Community Justice Center,” report, Center for Court Innovation (2006), p. 3.
- Tom R. Tyler, Why People Obey the Law (Princeton, NJ: Princeton University Press, 2006), p. 22.
- Kim Ball, “Director’s Message, “Americans’ Views on Public Defenders,” supra n. 10.
- Amy Bach, Ordinary Injustice: How America Holds Court (New York: Metropolitan Books, 2009).