By Tray Brown | Due Process Institute | Policy Communications Associate
Background
March 18th is Public Defense Day and this year celebrates the 61st anniversary of the Supreme Court’s landmark decision Gideon v. Wainwright. I believe this year’s Public Defense Day is an especially good opportunity to highlight and explain key Supreme Court cases that have shaped our country’s current public defense function. While most people are at least somewhat familiar with the landmark Gideon decision, there are other assistance of counsel cases that predate and postdate that decision that are vital to understanding the current state of public defense in the United States. Lastly, in honor of the incredible work our nation’s federal, state, and community defenders accomplish on behalf of their communities, I want to provide an update regarding the troubling public defense funding debate currently being hashed out in Congress and how that impacts our entire criminal legal system.
The Sixth Amendment enshrines several constitutional rights guaranteed to a person accused of a crime: the right to have a speedy trial in front of an impartial jury; the right to know your accusers and the nature of the charges and evidence against you; and the right to have “assistance of counsel” for your defense. The Supreme Court’s interpretation of this last guarantee is the subject of most of the cases laid out in this article. The Sixth Amendment applies to federal as well as state criminal cases via the Fourteenth Amendment.[1]
I think the best place to start a timeline about the assistance of counsel and the creation of our public defense system is with Clara Shortridge Foltz, California’s first female lawyer. She passionately articulated the need for public defenders at the 1893 Chicago’s World’s Fair. Her idea inspired legislation that created public defender offices in California, with the establishment of the first office in Los Angeles County in 1913. The idea spread and by 1930, public defender offices existed in California, Ohio, Connecticut, Tennessee, Oregon, Nebraska, and Illinois. Just two years later, the Supreme Court would address the right to have assistance of defense counsel in Powell v. Alabama.
The Scottsboro Boys and Capital Cases: Powell v. Alabama (1932)
In 1931, nine Black teenagers, known as the Scottsboro Boys, were arrested and accused of raping two white women on a train traveling from Tennessee to Alabama. The nine teenagers—Haywood Patterson, Olen Montgomery, Clarence Norris, Willie Roberson, Andy Wright, Ozzie Powell, Eugene Williams, Charley Weems and Roy Wright—were swiftly tried and convicted despite no medical evidence of the crime. (Tragically, one of the alleged victims later confessed that the entire incident had been fabricated and neither woman had been touched by any of the accused.) With the exception of 13-year-old Roy Wright, they were all sentenced to death.
At the time, Alabama state law required trial courts to appoint defense counsel to an indigent defendant in a capital case. The state “complied” by providing the nine men with two attorneys for a series of three trials that each lasted one day. This became the critical issue when Powell v. Alabama reached the Supreme Court for appellate review. In a 7-2 decision, the Court held that the accused were denied their right to due process because their counsel plainly did not have sufficient time to advise them nor to adequately prepare a defense. As Justice Sutherland, who authored the opinion for the majority, described: “The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril of their lives within a few moments after counsel for the first time charged with any degree of responsibility began to represent them.”
The Court’s decision in Powell thereafter meant that—at least in capital cases—the constitutional assistance of counsel required more than a pro forma appointment of counsel in order to guarantee a fair trial. But the question remained whether this guarantee of adequate assistance of counsel applied outside the capital case context.
Assistance of Counsel in Federal Court: Johnson v. Zerbst (1938)
Six years after the Powell decision, the Supreme Court revisited the Sixth Amendment’s guarantee of the assistance of defense counsel in Johnson v. Zerbst. In that case, Mr.Johnson was charged with the use and possession of counterfeit money. He was arraigned, tried, convicted, and ultimately sentenced to four and one-half years in a federal penitentiary in the course of a single day all without the benefit of defense counsel.
In a 6-2 decision, the Supreme Court ruled in Johnson’s favor. In so doing, the Court held that the Sixth Amendment’s guarantee of the assistance of counsel applied to all federal criminal proceedings and further required that any waiver of this right by an accused person must be knowing, intelligent, and competent. Poignantly, the majority’s opinion explained that the Sixth Amendment’s guarantee for assistance of counsel “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
A Step Backwards: Betts v. Brady (1942)
Smith Betts was arrested and charged with robbery in Carroll County, Maryland. When facing arraignment, he informed the judge that he could not afford an attorney and requested the court appoint one to represent him. His request was denied under a law in Carroll County that only provided counsel when the accused was charged with murder or rape. Betts pleaded not guilty and represented himself before being convicted and sentenced to eight years in prison. On appeal, Betts argued that he had been denied his right to a fair trial.
In a 6-3 decision in favor of the government, the Supreme Court ruled that Betts’ constitutional rights were not violated when the state failed to provide him with counsel. Justice Owen Roberts’ opinion reasoned that while the Sixth Amendment guarantees the right to a fair trial, the Fourteenth Amendment did not “embody “an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.” However, the Betts decision did come with a qualifier: a person deemed to be unable to mount their own legal defense due to “ignorance, feeble-mindedness, [or] illiteracy” would be appointed counsel.
The Betts decision, which allowed certain states to continue their policy of not appointing counsel to people who could not afford one, failed to build upon the progress made during the previous decade in Powell and Johnson. However, Justice Black’s dissent in Betts laid much of the framework for overturning the decision 21 years later in Gideon v. Wainwright.
The Landmark Decision: Gideon v. Wainwright (1963)
Clarence Earl Gideon was arrested and charged with a robbery crime in Florida. When facing arraignment, he alerted the judge that he could not afford an attorney and requested the court appoint one to represent him. His request was denied since Florida law only required counsel in capital cases. Gideon pleaded not guilty, but ultimately was tried, convicted, and sentenced to prison all without defense representation.
If this sounds a lot like the case in Betts v. Brady, you’d be right (Justice Black called the facts “strikingly similar” in his opinion.) But this time around, over twenty years later, the Supreme Court unanimously ruled in favor of Gideon and firmly established that the Sixth Amendment’s guarantee of defense counsel is a fundamental right essential to a fair trial and therefore must be provided by the government if someone cannot afford to pay for their own counsel. As we rightly celebrate every March, the Gideon decision led to a massive expansion in the availability of public defenders available to those who needed them and thousands of retrials for people who had not previously been afforded adequate representation.
Misdemeanors and Assistance of Counsel: Argersinger v. Hamlin (1972)
Nine years after the landmark Gideon decision, the Supreme Court revisited the Sixth Amendment’s guarantee of the assistance of defense counsel in another major case. This case involved a man named Jon Argersinger who was charged with carrying a concealed weapon–a misdemeanor in the state of Florida that carried a maximum sentence of six months in jail. Argersinger was not represented by an attorney at his bench trial and was ultimately sentenced to 90 days in jail.
Florida denied Argersinger’s assistance of counsel claim based on the fact there was no jury present for his trial, as the Powell and Gideon decisions had involved felony charges and jury trials. Florida only extended assistance of counsel to trials that required a jury or in cases involving “non-petty offenses punishable by more than six months imprisonment.”
In another 9-0 unanimous decision, the Supreme Court ruled that because Argersinger faced imprisonment, he had been entitled to have counsel appointed to represent him. Argersinger served as an important clarification of the Gideon decision: persons accused of misdemeanor crimes and facing jail time were also entitled to defense counsel.
Backsliding Relating to Possibility-of-Imprisonment Cases: Scott v. Illinois (1979)
Seven years after the Argersinger decision, the Supreme Court heard Scott v. Illinois. Without being appointed counsel, Scott was convicted of shoplifting in a bench trial and levied a $50 fine. While he had not personally received a sentence including jail time, the maximum possible penalty for his crime under Illinois law was one year of imprisonment. Scott argued that because there was a possibility of imprisonment in his case, he had been entitled to legal representation during his trial.
In a 5-4 decision, the Supreme Court held that a person is not guaranteed counsel simply because they are “charged with a statutory offense for which imprisonment upon conviction is authorized but not imposed.” This decision halted the continuous expansion of the public defense function that had occurred since 1963. The ramifications of the Scott v. Illinois decision were and remain significant. To this day, countless under-resourced Americans are not provided legal representation because the prospective punishment is not deemed “severe enough” by state and local legislatures to qualify for defense counsel.
Part of the majority’s reasoning, authored by Justice Rehnquist, was that expanding assistance of counsel for all cases in which there was the possibility of imprisonment would result in “unpredictable, but necessarily substantial, costs on 50 quite diverse States.” Justice Brennan, on the other hand, addressed what he saw as the beneficial effect of such a standard in his dissent: “It may well be that adoption by this Court of an ‘authorized imprisonment’ standard would lead state and local governments to reexamine their criminal statutes. A state legislature or local government might determine that it no longer desired to authorize incarceration for certain minor offenses in light of the expense of meeting the requirements of the Constitution. In my view, this reexamination is long overdue.”
Unfortunately, this reexamination of criminal statutes that authorize incarceration, for the most part, has not taken place. Instead, accused persons who cannot afford counsel in minor cases in a significant number of states still face life-altering consequences. For example, only 58% of misdemeanor cases in Florida had an attorney present according to a 2019 New York Times study, which means that thousands of defendants in the state received criminal records, fines, and driver license suspensions (each of which greatly affect employment, housing, and education opportunities) without legal representation.
Limiting Post-Conviction Relief for Death Row Inmates: Murray v. Giarratano (1989)
Moving ahead another decade, Joseph Giarratano, represented by defense counsel, was convicted and sentenced to death in the state of Virginia . After his conviction, he was again provided with counsel to file a direct appeal but his sentence was upheld. Giarratano then pursued postconviction collateral proceedings for relief. [2] He was not appointed counsel for those proceedings and was merely offered access to the prison’s law library so that he could represent himself. He then appealed the legality of his sentence through a new case, arguing that Virginia did not appoint him counsel for those proceedings, which Giarratano asserted was a violation of his constitutional right to assistance of counsel.
Once that case eventually made its way to the Supreme Court, in a 5-4 decision, the Court determined that the Constitution did not require the government to provide defense counsel for postconviction proceedings. Justice O’Connor wrote in her concurring opinion, “a postconviction proceeding is not part of the criminal process itself but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the States to provide such proceedings.” Furthermore, the Court also did not find postconviction proceedings in death penalty cases to warrant any special consideration or circumstance when it came to appointing counsel. To this day, defendants—including those facing a sentence of death—are unable to effectively pursue all avenues of relief if they cannot afford their own attorney, which means they never have the opportunity to present ineffective assistance of counsel claims and address other meaningful procedural defects of their convictions.
Opening, then Restricting, A Narrow Window of Post-Conviction Relief: Martinez v. Ryan (2012) and Shinn v. Ramirez (2022)
In 2012, the Supreme Court revisited some of the issues presented in Murray v. Giarratano in Martinez v. Ryan. The case focused on an Arizona state law that barred individuals from raising ineffective assistance of counsel claims during direct appellate review. Arizona law required ineffective counsel claims to be raised only in collateral proceedings, not via direct appeal. Martinez argued that because he could not make those claims in a direct appeal (in which he would be provided defense counsel) he was entitled to counsel in his collateral proceedings because it was the only place he could raise such claims.
Although the Court ruled 7-2 in favor of Martinez, it did not establish assistance of counsel in all collateral proceedings. Instead, the Court’s decision carved out an exception for defendants to present claims of ineffective assistance of counsel. The American Bar Association (ABA) distilled the impact of Martinez best: “It created a narrow pathway for prisoners who twice received ineffective representation—once at trial and again in state post-conviction proceedings—to raise a claim in federal court that their right to effective counsel at trial was violated.”
Unfortunately, this narrow pathway for those seeking post-conviction relief was short-lived. In 2022 and in a 6-3 decision, the Supreme Court ruled in Shinn v. Ramirez that defendants would not be able to introduce new evidence to prove ineffective assistance of counsel in federal habeas cases. While this was not a direct overturning of Martinez, it obviously severely restricted a person’s ability to raise the types of claims described in the case. Justice Sotomayor dissented, calling the decision “perverse” and “illogical,” pointing out how Shinn barred an individual who received ineffective assistance of counsel at trial and from postconviction counsel from supplying any evidence of this in federal court.
Where Things Stand Now
In the 90 years since the Supreme Court’s decision in Powell v. Alabama, there has been a considerable evolution in what “assistance of counsel” means. My hope is that this brief outline of cases at the Supreme Court allows you to better understand the development of this pivotal right and, crucially, where our country still falls short in guaranteeing it. With its first former public defender on the bench—Justice Ketanji Onyika Brown Jackson—I am hopeful the Supreme Court will soon revisit issues like indigent representation in post-conviction proceedings. However, the Supreme Court is still only one branch of our government. The responsibility to safeguard our constitutional right to assistance of defense counsel—whether we can afford it or not—also falls on Congress. It is the body responsible for funding constitutional mandates. Unfortunately, Congress is showing callous indifference in recent times.
Is the Current Congress Supporting the Constitutional Public Defense Function?
In 2023, the House and Senate Appropriations Committees approved a funding shortfall for the Federal Public and Community Defenders of $80.6 million and $109 million respectively for Fiscal Year 2024. Federal Public and Community Defenders sounded the alarm about the impact of this proposed budget by announcing a hiring freeze and predicting a loss of 500 public defender and staff positions, which is a 12% decrease in its roughly 4,100 employees. Due Process Institute and other criminal legal reform organizations advocated for the Federal and Community Defenders to receive increased funding levels until the Administrative Office of the U.S. Courts and the Judicial Conference finally issued a 20% increase in March of this year.
It is imperative Congress sends the message that the assistance of counsel and the public defenders who uphold our constitutional rights are a crucial component of the American criminal legal system. The shortsighted budget allocation for Fiscal Year 2024 must not be repeated in Fiscal Year 2025 as it will harm the efficacy of our legal system and promote injustice.
Lack of Funding Affects The Entire Legal System
Public defenders are the backbone and water carriers of the federal legal system where 90% of criminal court defendants rely on court- appointed attorneys. It is estimated that the Federal Defenders open 125,000 total cases (felonies, misdemeanors, probation, and appeals) in a given year.
A budget shortfall within the federal public defenders’ office will undoubtedly have far-reaching consequences. First and foremost, it will lead to an overload of cases for each public defender, reducing the time and attention they can dedicate to each client’s defense. This undermines the quality of representation, potentially leading to wrongful convictions or unfair sentences. In addition to the harm caused to the accused and their families, wrongful convictions can also lead to further harm to additional victims that could have been prevented.
The effects of a budget shortfall extend beyond the fairness of individual cases. An underfunded Office of the Federal Public Defender will result in more case delays and backlogs, straining an already burdened system where pending criminal cases have already increased 25% since 2018. These delays result in prolonged pretrial detention, filling our federal prisons with people who have not been convicted of a crime.
Underfunding Public Defense Leads To Fewer Trials and More Guilty Pleas
Jury trials are already an endangered species at the federal level. According to a study done by Pew Research, the percentage of federal criminal defendants who went to trial dropped from 7% in 1998 to 2% only two decades later. In this same time span, guilty pleas increased from 82% to 90%, an 8% increase. A funding-strapped federal public defense system only worsens this trend by increasing caseloads and decreasing the necessary resources to mount a defense.
Jury trials are both time and resource intensive. Greater caseloads means less time for each individual client and it incentivizes public defenders and their clients—through no fault of their own—to dispense the matter via a guilty plea rather than a jury trial. Pleading becomes a necessary escape valve for both the system and public defender offices to function. Jury trials require additional resources outside of a defense attorney. Limited resources result in less investigations, fewer expert witnesses, and reductions of other essential elements of a comprehensive defense strategy. Without proper access to these resources, public defenders face greater obstacles to mounting effective challenges, which undermines the fundamental principles of our adversarial system.
By decreasing the available resources for federal public defenders and increasing their caseloads, Congress is actively discouraging criminal cases proceeding to a jury trial, which is a foundational pillar of our democracy.
Public Defender Offices With Adequate Support Staff Result In Better Outcomes For Our Communities
Importantly, our public defense system consists of more than just attorneys. Of the 4,000+ employees, many are social workers and other forms of support staff that are crucial to both a functioning system and to improving outcomes. In fact, one of the most important services provided by a public defender’s office is the access to social workers for clients.
Social workers play a vital resource in sentencing mitigation, which can help reduce overly harsh and long sentences. Any time spent incarcerated has devastating consequences for employment and housing. By effectively and fairly reducing the time an individual is behind bars, the impact of a conviction is lessened and returning citizens face a less daunting path to reentry.
In addition to assisting mitigation, social workers and other support staff also connect clients to much-needed community services. These services help citizens reentering society with finding steady employment, affordable housing, food security, and expungements of their records where appropriate. All four are closely linked with lowering recidivism, which improves public safety and helps ensure that other members of the community are not victims of further harm.
A properly funded federal public defender encompasses more than just managing caseloads; it is about maintaining support staff that provide crime reducing services. Melody Brannon, Kansas’s top federal defender, put it succinctly in a letter to Senator Jerry Moran: “when we lose funding, we lose people.”
The Human Cost of Underfunding the Defense Function
Public defenders are the first to point out that the people most impacted by the proposed budget cuts are their clients. However, Congress’s current proposed budget will also negatively impact the health of public defenders themselves. It is a professional field already rife with secondary traumatic stress and a study by Rutgers University Law School found that the mental health toll of the profession is only “further compounded by the chronic underfunding of indigent defense systems.” Public defenders—like prosecutors—are officers of the court and should be entitled to caseloads that allow them to effectively do their job and maintain their mental well-being.
Conclusion
Federal public defenders perform a vital and constitutionally guaranteed role in our justice system. Congress must recognize that allocating only the bare minimum funding to public defenders (like the previous FY2024 budget) deprives them of their ability to provide adequate legal representation to clients, increases the likelihood of injustice, hamstrings recidivism reduction, and negatively affects their health. On this Public Defense Day, Due Process Institute is strongly urging Congress to fund the Federal Public and Community Defenders fully and adequately in 2025. All branches of government must do their part to ensure our nations’ constitutional guarantees, which critically includes the right to assistance of defense counsel.
[1] In case you need a quick refresher, the Fourteenth Amendment was ratified in 1868, almost 90 years after the Sixth Amendment. It prohibited states from creating and enforcing laws “which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[2] Generally speaking, a postconviction collateral proceeding is one in which a prior legal judgement is attacked but not via a direct appeal. Habeas corpus petitions are the most common example of a postconviction collateral proceeding. One of the most common claims raised in a habeas petition is when a defendant challenges the legality of their conviction on the ground they were provided with ineffective assistance of counsel during their case.