Fifty years of defiance and resistance after Gideon v. Wainwright

Yale Law Journal

Volumn 122, Issue 8, 2013, Pages 2150-2174

  Bright, Stephen B ^a   Sanneh, Sia M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84879830695     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (137)

1. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Ninety-four percent of convictions in state courts are the result of guilty pleas. In the federal courts, ninety-seven percent of convictions are the result of guilty pleas.
2. 372 U.S. 335, 345 (1963) (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).
3. Gideon applied to felony cases. The Court later held that children facing commitment to an institution were entitled to counsel as a matter of due process in delinquency proceedings, In re Gault, 387 U.S. 1, 34-42 (1967), and that "no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel," Argersinger v. Hamlin, 407 U.S. 25, 40 (1972). An accused is entitled to counsel "within a reasonable time" after "the initiation of adversary judicial proceedings," Rothgery v. Gillespie Cnty., 554 U.S. 191, 212 (2008), and at any "critical stage" of a criminal proceeding, such as a preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 7-10 (1970), or arraignment, White v. Maryland, 373 U.S. 59, 60 (1963). The Court also held that an indigent defendant is entitled to expert assistance when necessary to a fair trial in Ake v. Oklahoma, 470 U.S. 68, 77-83 (1985), although its decision was based on due process and not the Sixth Amendment. The American Bar Association, among other organizations, has developed standards for effective representation.
4. ABA Standards for Criminal Justice: Providing Defense Services (3d ed. 1992), http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/providing_defense_services.authcheckdam.pdf
5. Standing Comm. on Legal Aid & Indigent Defendants, Ten Principles of a Public Defense Delivery System, A.B.A. (Feb. 2002), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls _sclaid_def_tenprinciplesbooklet.authcheckdam.pdf [hereinafter Ten Principles] (summarizing and citing principles from previous reports, studies and guidelines).
6. Gideon, 372 U.S. at 344.
7. Douglas v. California, 372 U.S. 353, 355 (1963) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)) (holding that a poor person had a right to counsel on appeal).
8. Nat'l Ctr. for State Courts, Examining the Work of State Courts, 2002: A National Perspective from the Court Statistics Project 13 (Brian J. Ostrom, Neal B. Kauder & Robert C. LaFountain eds., 2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/ewsc02-npcsp.pdf.
9. One in 15 African-American men over eighteen and 1 in 36 Latino men over eighteen are imprisoned, while only 1 in 106 white men over eighteen is behind bars.
10. One in 100: Behind Bars in America 2008, Pew Center on the States 6 (2008), http://www.pewstates.org/uploadedFiles/PCS_Assets/2008/one%20in%20100.pdf. One in 9 African-American men between the ages of twenty and thirty-four is behind bars.
11. Lauren E. Glaze, Correctional Populations in the United States, 2010, Bureau of Just. Stat. 7 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.
12. John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Center for Econ. & Pol'y Res. 2 (2010), http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.
13. Glaze, supra note 8, at 2-3. When those under supervision in the community are combined with those in prison and jail, one in every thirty-three adults, or 3.1% of the population, is under some form of correctional control. The rates are drastically elevated for African Americans. One in every eleven African Americans was under correctional control at the end of 2007.
14. One in 31: The Long Reach of American Corrections, Pew Center for the States 5 (2009), http://www.pewstates.org/uploadedFiles/PCS_Assets/2009/PSPP_1in31 _report_FINAL_WEB_3-26-09.pdf
15. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 179-180 (2010) (discussing the effects of mass incarceration on the African-American community).
16. Children's Def. Fund, The State of America's Children: Handbook 2012, at 48 (2012).
17. Since 1997, African-American children have been at least three-and-a-half times as likely and Latino children at least one-and-a-half times as likely as white children to be in residential placement.
18. Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., concurring).
19. Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 705-706 (2002).
20. Collateral Costs: Incarceration's Effect on Economic Mobility, Pew Center on the States 9-18 (2010), http://www.pewstates.org/uploadedFiles/PCS_Assets/2010/Collateral_Costs%281%29.pdf (reporting that incarceration reduces former inmates' earnings by forty percent and limits their future economic mobility).
21. Reporting that 2.7 million children have a parent behind bars-1 in 9 African-American children, 1 in 28 Latino children, and 1 in 57 white children-and that a parent's incarceration hurts children educationally and financially); see also Alexander, supra note 10, at 171-75.
22. Todd Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007).
23. The "lawyer-conducted" Anglo-American adversary system is practiced in the United States, England, and other countries founded on English common law, as opposed to the judge-driven "European and European-derived" system found elsewhere.
24. John H. Langbein, The Origins of Adversary Criminal Trial 1 (2005)
25. Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301, 301 (1989) (explaining that the majority of the world uses some version of the inquisitorial system that evolved primarily in continental Europe).
26. Langbein, supra note 15, at 1 ("The striking peculiarity of the Anglo-American trial is that we remit to the lawyer-partisans the responsibility for gathering, selecting, presenting, and probing the evidence.... In the European systems, by contrast, evidence is gathered by judges or judge-like investigators, public officers who operate under a duty to seek the truth.").
27. Herring v. New York, 422 U.S. 853, 862 (1975).
28. Penson v. Ohio, 488 U.S. 75, 84 (1988).
29. Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975) (internal quotation marks omitted).
30. Clive Stafford Smith, The Injustice System 206-209 (2012) (describing a Florida judge allowing prosecutors to prepare sentencing orders in capital cases)
31. Stephen B. Bright & Patrick Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 803-811 (1995) (describing numerous instances in which state attorneys wrote orders signed by judges without any changes).
32. David Luban, Are Criminal Defenders Different?, 91 Mich. L. Rev. 1729, 1731-1736 (1993) (describing the resources available to the prosecution).
33. Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 400-401 (1992).
34. See, e.g., Kuhlmann v. Wilson, 477 U.S. 436 (1986) (holding that an accused's statements to a jailhouse informant placed in his cell by police are admissible so long as the informant does not ask questions or take coercive steps to elicit information).
35. Gershman, supra note 21, at 449; (describing the prosecutor's control of information); Luban, supra note 20, at 1737 ("[C]riminal defendants have virtually no discovery rights against the prosecution in most jurisdictions.").
36. Norman L. Reimer, Discovery Reform: The Time for Action Is at Hand, Champion, Mar. 2012, at 7
37. Providing illustrative examples and arguing that "[t]rial by ambush practices that leave the defense clueless as to the identity, background and reliability of key witnesses until the eve of trial, or later, must end," for "[t]hese practices not only ambush individual defendants, they ambush justice".
38. Paul C. Giannellia & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 Fordham L. Rev. 1493 (2007) (discussing "trial by ambush" in the use of expert witnesses).
39. R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429, 1431 & n.8 (2011) (describing plea agreements with explicit discovery-waiver provisions).
40. United States v. Williams, 504 U.S. 36, 45-55 (1992) (holding that a district court may not dismiss an otherwise valid indictment on the ground that the government failed to disclose "substantial exculpatory evidence" to the grand jury).
41. United States v. Ruiz, 536 U.S. 622, 632-33 (2002) (holding that the Constitution does not require the government to disclose material impeachment information prior to entering a plea agreement with a criminal defendant).
42. Town of Newton v. Rumery, 480 U.S. 386 (1987).
43. The decision to bring charges in state or federal court may be based upon which jurisdiction has the more severe punishment. See, e.g., United States v. Armstrong, 517 U.S. 456, 479 (1996) (Stevens, J., dissenting) (noting that sentences for drug offenses tend to be substantially more severe in the federal system than in the state systems and that, in the case before the Court, the federal sentence might be as long as a mandatory life term, but in state court it could have been as short as twelve years, less work-time credits of half that amount).
44. See Gershman, supra note 21, at 405-08 (describing discretionary decisions of prosecutors with regard to charging and resolving cases).
45. Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007) (arguing that unchecked prosecutorial discretion leads to unjust results in the criminal system).
46. See 18 U.S.C. § 3553(e) (2006); 28 U.S.C. § 994(n) (2006); U.S. Sentencing Guidelines Manual § 5K1.1 (2011). As one scholar has noted, "Congress created a sentencing system that provides prosecutors tremendous leverage in the plea bargaining process, forced criminal defense attorneys to adopt the role of transactional attorneys rather than zealous advocates, and virtually eliminated the criminal jury as a viable check on government overreaching".
47. Jackie Gardina, Compromising Liberty: A Structural Critique of the Sentencing Guidelines, 38 U. Mich. J.L. Reform 345, 373 (2005) (footnotes omitted).
48. See McCleskey v. Kemp, 481 U.S. 279, 312 (1987) ("A prosecutor can decline to charge, offer a plea bargain, or decline to seek a death sentence in any particular case.").
49. Richard A. Oppel, Jr., Sentencing Shift Gives New Leverage to Prosecutors, N.Y. Times, Sept. 25, 2011, http://www.nytimes.com/2011/09/26/us/tough-sentences-help -prosecutors-push-for-plea-bargains.html (describing how sentencing laws give prosecutors power to determine sentences).
50. 434 U.S. 357 (1978).
51. The Court relied on the "relatively equal bargaining power" between the prosecution and the defense. (quoting Parker v. North Carolina, 397 U.S. 790, 809 (1970) (Brennan, J., dissenting)). However, Hayes had no power-only a choice between accepting the plea offer for a sentence of five years and rejecting it and spending the rest of his life in prison.
52. Burns v. Reed, 500 U.S. 478 (1991); Imbler v. Pachtman, 424 U.S. 409 (1976).
53. Connick v. Thompson, 131 S. Ct. 1350 (2011).
54. See McCleskey v. Kemp, 481 U.S. 279, 292-97 (1987); Wayte v. United States, 470 U.S. 598, 607 (1985).
55. See United States v. Bass, 536 U.S. 862 (2002) (per curiam); McCleskey, 481 U.S. at 296-97 & n.18; see also In re United States, 397 F.3d 274 (5th Cir. 2005) (per curiam).
56. David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011), http://yalelawjournal.org/2011/10/25/keenan.html
57. Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, Veritas Initiative, http://www.veritasinitiative.org/downloads/ProsecutorialMisconduct_Exec_Sum.pdf (showing that prosecutors are not penalized for misconduct).
58. See Gershman, supra note 21, at 408 (decrying the regular overcharging, discrimination, vindictiveness, plea bargaining abuses, and other misconduct that occurs "without meaningful judicial review or correction").
59. All but four states (Connecticut, Delaware, New Jersey, and Rhode Island) elect their chief prosecutors.
60. Michael J. Ellis, Note, The Origins of the Elected Prosecutor, 121 Yale L.J. 1528, 1530 n.3 (2012).
61. The United States is the only country in the world where citizens elect prosecutors.
62. See Brief for the State Government Amici Curiae, Gideon v. Wainwright, 372 U.S. 335 (1963) (No. 155), 1962 WL 75209.
63. Anthony Lewis, Gideon's Trumpet 147-152 (1964).
64. For example, after a trial judge permitted a public defender in Miami to decline representation in one complex case carrying a sentence of life imprisonment because the public defender could not competently and ethically handle it due to obligations to 164 clients in pending felony cases, the prosecutor appealed and obtained a reversal of the order. Bowens v. State, 39 So. 3d 479, 480-82 (Fla. App. 2010). It is hard to imagine the prosecutor having any interest in seeking reversal of a judge's decision allowing a public defender to decline a single complex case except to take advantage of the public defender's excessive workload.
65. Rothgery v. Gillespie Cnty., 554 U.S. 191, 212 (2008) (quoting Michigan v. Jackson, 475 U.S. 625, 630 n.3 (1986)). Defendants are entitled to counsel at preliminary hearings, Coleman v. Alabama, 399 U.S. 1 (1970), which are scheduled in most jurisdictions within ten to twenty days of arrest and provide an opportunity for dismissal of the charges or a reduction of bond, but defendants without counsel may not receive preliminary hearings because there is no counsel to ask for them.
66. Nat'l Right to Counsel Comm., Constitution Project, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel 85-87 (2009), http://www.constitutionproject.org/manage/file/139.pdf [hereinafter Justice Denied].
67. Powell v. Alabama, 287 U.S. 45, 57 (1932).
68. Hurrell-Harring v. State, 883 N.Y.S.2d 349, 360 n.3 (N.Y. App. Div. 2009) (Peters, J., dissenting), aff'd as modified, 930 N.E.2d 217 (N.Y. 2010).
69. Brian Chasnoff, Indigent Often Are Left in a Legal Limbo, San Antonio Express-News, Oct. 10, 2010, at A1.
70. Assembly Line Justice: Mississippi's Indigent Defense Crisis, NAACP Legal Def. & Educ. Fund, Inc. 3 (Feb. 2003), http://www.americanbar.org/content/dam/aba/migrated/legalservices /downloads/sclaid/indigentdefense/ms_assemblylinejustice.authcheckdam.pdf.
71. Justice Denied, supra note 47, at 86-87.
72. Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts, Nat'l Ass'n of Crim. Def. Law. 18-19 (2009), http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=20808.
73. John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty 16-17 (Cornell Legal Studies Research Paper 2012), http://ssrn.com/abstract =2103787
74. "[I]nnocent persons charged with relatively minor offenses often plead guilty in order to get out of jail, to avoid the hassle of having criminal charges hanging over their heads, or to avoid being punished for exercising their right to trial".
75. When the Innocent Plead Guilty, Innocence Project (last visited Apr. 1, 2013), http://www.innocenceproject.org/Content/When_the_Innocent_Plead_Guilty.php.
76. ABA Standing Comm. on Legal Aid & Indigent Defendants, Gideon's Broken Promise: America's Continuing Quest for Equal Justice, at iv (2004), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf.
77. Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. Davis L. Rev. 277, 280-282, 297-303 (2011) (discussing the number of misdemeanor cases and the significant consequences of convictions in those cases).
78. Boruchowitz et al., supra note 53, at 11 (estimating that at least ten million misdemeanor cases are filed each year).
79. Boruchowitz et al., supra note 53, at 14-22.
80. Alisa Smith & Sean Maddan, Three-Minute Justice: Haste and Waste in Florida's Misdemeanor Courts, Nat'l Ass'n of Crim. Def. Law. 23 tbl.9 (July 2011), http://www.nacdl.org/reports /threeminutejustice.
81. David Carroll, Underrepresentation in Kentucky Misdemeanor Courts, Nat'l Legal Aid & Defender Ass'n (Nov. 16, 2011, 3:34 pm), http://nlada.net/jseri/blog/underrepresentation -kentucky-misdemeanor-courts
82. Dave Malaska, Trampling over the Sixth Amendment: NKY Courts Play Fast and Loose with Rules, CityBeat (Cincinnati), Nov. 9, 2011, http://www.citybeat.com/cincinnati/article-24355-trampling_over_the_sixth_amendment.html
83. Average DPA Appointment Rate to "M" Cases in District Court Over Three Fiscal Years, By County, Ky. Dep't of Pub. Advocacy, http://dpa.ky.gov/NR/rdonlyres/82134EDC-6545-4238-9923-9F3202C27005/0/StatewideMisdemeanorAppointmentsFY09FY10FY11.xlsx (last visited Apr. 1, 2013).
84. Malaska, supra note 63.
85. Nat'l Legal Aid & Defender Ass'n, A Race to the Bottom: Speed and Savings over Due Process: A Constitutional Crisis, at ii-iii (2008), http://www.mynlada.org/michigan/michigan_report.pdf
86. Colo. Rev. Stat. § 16-7-301(4) (West 2006). The statute has been challenged in Colorado Criminal Defense Bar v. Suthers, No.10-CV-02930 (D. Colo. filed Jan. 20, 2012), http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=23584&I:6ID:23554.
87. Petition for Writ of Habeas Corpus, McGee v. Companaro, No. 2018-RCHM-1 (S.D. Ga. filed Jan. 22, 2010).
88. Memorandum from Abigail Leinsdorf & Atteeyah Hollie Regarding Proceedings in Cordele Superior Court (Mar. 13, 2012) (on file with authors).
89. Letter from Rashawn Clark, Assistant Pub. Defender, to Client (Dec. 28, 2011) (on file with authors).
90. Letter from Rashawn Clark, Assistant Pub. Defender, to Client (Jan. 19, 2012) (on file with authors).
91. Both authors have observed this in various courtrooms in the South.
92. Laurence A. Benner, The Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California, 45 Cal. W. L. Rev. 263, 305 (2009).
93. In California, twenty-four of fifty-eight counties use contract defenders. One county relies primarily on an assigned counsel program, and the rest have public defender offices as the primary provider of representation. Id. at 284, 307. California and Pennsylvania are the only states that require counties to provide all funding for indigent defense. Several states, including Colorado, Connecticut, Delaware, Florida, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin, provide all funding for representation of indigent defendants. Alabama, Alaska, Iowa, Kentucky, and Wyoming provide primary funding (fifty-one percent or more), supplemented by their counties. Counties provide primary funding in Arizona, Arkansas, Georgia, Idaho, Illinois, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, Ohio, South Carolina, Texas, Utah, and Washington, with supplemental funding by the state. See Kathleen E. Mollison, 50-State Survey of Indigent Defense Systems (2012) (unpublished manuscript) (on file with authors).
94. Report and Recommendations on Funding of Defense Services in California, Cal. Commission on the Fair Admin. of Just. 10-12 (Apr. 14, 2008), http://www.ccfaj.org/documents/reports/prosecutorial/official/OFFICIAL%20REPORT%20ON%20DEFENSE%20SERVICES.pdf.
95. Justice Denied, supra note 47, at 7.
96. Ga. Pub. Defender Standards Council, Attorney Caseload Comparison: July 1, 2011, to June 30, 2012, at 6-8 (Dec. 14, 2012) (unpublished data) (on file with authors).
97. See Justice Denied, supra note 47, at 65-70.
98. Some public defender offices have conducted weighted caseload studies to determine how much time different kinds of cases require.
99. Norman Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public Defense 140-160 (2011), http://www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing _reasonable_caseloads.authcheckdam.pdf. For example, the public defender office in Lincoln, Nebraska, established a caseload standard of 127 felonies per year.
100. State ex rel. Mo. Pub. Defender Comm'n v. Pratte, 298 S.W.3d 870, 877 (Mo. 2009).
101. Fiscal Year 2012 Annual Report, Mo. Pub. Defender Commission 10-11 (2012), http://www.publicdefender.mo.gov/about/FY2012AnnualReport2.pdf.
102. Memorandum from Cathryn R. Kelly, Dir., State Pub. Defender Comm'n, to Governor Nixon, Members of the Supreme Court, Members of the Gen. Assembly, and Presiding Judges 2 (Oct. 1, 2011) (on file with authors).
103. Jeff Severns Guntzel, Minnesota's Public Defender Shortage: "We Are Fast Becoming the Courts of McJustice", Minneapolis Post: Intelligencer (Oct. 13, 2010), http://www.minnpost.com/intelligencer/2010/10/minnesotas-public-defender-shortage-we-are-fast-becoming-courts-mcjustice.
104. Model Rules of Prof'l Conduct pmbl. 2 (explaining the duty of zealous representation); (requiring competent representation); (requiring confidentiality); (prohibiting representation of clients with conflicting interests).
105. See, e.g., Alaska Stat. § 18.85.030 (2012); Del. Code Ann. tit. 29, § 4601 (2003); Ga. Code Ann. § 17-12-5(a) (2008); Iowa Code Ann. §§ 13B.1-BB.11 (West 2012); Nev. Rev. Stat. Ann. § 180.010 (LexisNexis 2011); N.J. Stat. Ann. § 2A:158A-4 (West 2011); R.I. Gen. Laws § 12-15-2 (2002); Vt. Stat. Ann. tit. 13, § 5252(a) (2009); Wyo. Stat. Ann. § 7-6-103(b) (2011).
106. See, e.g., Ark. Code. Ann. §§ 16-87-202 to -204 (2005); Haw. Rev. Stat. Ann. §§ 802-9, -11 (LexisNexis 2007); Mo. Ann. Stat. § 600.015 (West 2011); Mont. Code Ann. § 2-15-1028 (2011); Wis. Stat. Ann. § 15.78 (West 2012); Wis. Stat. Ann. §§ 977.01-04 (West 2007).
107. See, e.g., Ariz. Rev. Stat. Ann. § 11-581 (2012); Cal. Gov't Code §§ 27700-27704 (West 2008); Idaho Code Ann. § 19-859 (2004); 16 Pa. Cons. Stat. Ann. § 9960.4 (West 2012).
108. See, e.g., 725 Ill. Comp. Stat. Ann. 5/113-3.1 (West 2011); Mich. Comp. Laws. Ann. § 775.16 (West 2010). Colorado's supreme court appoints a commission, which then appoints the state public defender. Colo. Rev. Stat. § 21-1-101 (2012).
109. Several states-including Connecticut, Conn. Gen. Stat. Ann. § 51-289 (West 2013), Kentucky, Ky. Rev. Stat. Ann. §§ 31.010-.250 (West 2012), Maryland, Md. Code. Ann., Crim. Proc. §§ 16-101 to -403 (West 2012), Minnesota, Minn. Stat. Ann. § 611.215 (West 2013), New Hampshire, N.H. Rev. Stat. Ann. §§ 494:1, 604-B:4 (West 2013), North Dakota, N.D. Cent. Code Ann. §§ 54-61-01 to -03 (West 2011), South Carolina, S.C. Code Ann. § 17-3-310 (West 2012), Virginia, Va. Code Ann. §§ 19.2-163.01 to.04 (West 2012), and the District of Columbia, D.C. Code §§ 2-1603 to -1605 (West 2012)-have created public defense commissions appointed by different officials, which gives them greater independence than ones where a single official, such as the governor or a judge, appoints all the members. New Mexico's chief public defender was until recently appointed by the governor. N.M. Stat. Ann. § 31-15-4(A) (West 2012). In November 2012, the New Mexico electorate passed a constitutional amendment to make the public defender office separate from the state government, and the New Mexico legislature is currently drafting enabling legislation to create an independent public defender commission. See Minutes of the Fifth Meeting of the Courts, Corrections and Justice Committee, N.M. Legislature 6-7 (Nov. 29-30, 2012) (describing an initial hearing debating the duties and composition of an independent public defender commission), http://www.nmlegis.gov/lcs/minutes/CCJminNOV30.12.pdf. For a comprehensive survey of which states have created public defense commissions, see Justice Denied, supra note 47, at 151; and Mollison, supra note 74.
110. See Brief of Appellant, In re Formal Advisory Opinion 10-1, No. S10U1679 (Ga. filed Feb. 28, 2011) (on file with authors). The brief was filed by the Georgia Attorney General and a local public defender who was a member of the Public Defender Standards Council. The Georgia Supreme Court unanimously rejected the argument. In re Formal Advisory Opinion 10-1, No. S10U1679, 2013 WL 1499445 (Ga. Apr. 15, 2013).
111. Letter from Shanna Shackelford to Stephen B. Bright (May 2, 2012) (on file with authors).
112. Fisher v. Gibson, 282 F.3d 1283, 1293 (10th Cir. 2002).
113. Fisher v. State, 206 P.3d 607, 610-11 (Okla. Crim. App. 2009).
114. Dan Barry, In the Rearview Mirror, Oklahoma and Death Row, N.Y. Times, Aug. 10, 2010, http://www.nytimes.com/2010/08/11/us/11land.html.
115. See Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc) (vacating, by a vote of nine to six, a conviction in a capital case because defense counsel slept during trial).
116. See, e.g., Haney v. State, 603 So. 2d 368, 377-78 (Ala. Crim. App. 1991) (stating that an intoxicated lawyer had been held in contempt and jailed during a capital trial).
117. See, e.g., Wilson v. Rees, 624 F.3d 737, 739-40 (6th Cir. 2010) (Martin, J., dissenting from denial of rehearing en banc) (stating that the "defense was clearly a charade" because "two wholly unqualified attorneys did a deplorable job" in a case in which the death penalty was upheld); Slaughter v. Parker, 467 F.3d 511, 512 (6th Cir. 2006) (Cole, J., dissenting from denial of rehearing en banc) (noting that counsel was not aware of his client's name or brain damage in a case in which the death penalty was upheld).
118. Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 Neb. L. Rev. 425, 455-462 (1996). For more cases, see Counsel, Second Class Just., http://www.secondclassjustice.com/?page_id=42 (last visited Apr. 1, 2013).
119. Strickland v. Washington, 466 U.S. 668, 689 (1984).
120. Glasser v. United States, 315 U.S. 60, 76 (1942).
121. Strickland, 466 U.S. at 694.
122. Justice Brennan joined the Court's opinion but dissented from its judgment based on his view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. 466 U.S. at 701-07 (Brennan, J., concurring in part and dissenting in part).
123. See 28 U.S.C. § 2254(d)(1) (2006) (providing that habeas relief may not be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"); Harrington v. Richter, 131 S. Ct. 770, 786 (2011) ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Richter Court added: "If this standard is difficult to meet, that is because it was meant to be".
124. Holsey v. Warden, 694 F.3d 1230, 1273 (2012) (holding that the state court's decision was not "beyond any possibility for fairminded disagreement" (quoting Harrington, 131 S. Ct. at 786-87)).
125. William S. Sessions, Foreword to Lefstein, supra note 81, at ix, ix.
126. Lewis, supra note 44, at 211.
127. Bill Rankin, Busy Barristers: Caseloads Swamp Public Defenders Throughout State, Atlanta J.-Const., Aug. 13, 2001, at B1 (reporting that "many indigent defendants languish in jails for months before seeing their lawyer," that many cases are "never investigated," and that guilty pleas "are often entered by poor defendants after meeting their lawyer for the first time in court and only a brief conversation about the case")
128. Bill Rankin, 'I Felt Like I Was Just Nothing': Suspected Months After Charges Dropped, Atlanta J.-Const., Dec. 20, 2003, at A1 (describing the case of a man arrested on loitering charges who was "found" in jail thirteen months after arrest, having never seen a lawyer or judge, and four months after the charges had been dismissed)
129. Bill Rankin, Indigent Defense Bill Beats the Odds, Atlanta J.-Const., Apr. 27, 2003, at C9 (describing the passage of the bill).
130. Bill Rankin, Indigent Defense Budget in Flux: Georgia's Strapped Public Defender System May Have To Divert Funds To Cover Costs of the Next Few Months, Atlanta J.-Const., Nov. 21, 2007, at B1.
131. See State v. Peart, 621 So. 2d 780 (La. 1993) (adopting a presumption of ineffectiveness where counsel had an excessive caseload and lacked resources for investigation and other expenses); DeWolfe v. Richmond, No. 34, 2012 WL 10853 (Md. Jan. 4, 2012) (holding that people accused of crimes have a right to counsel at first appearance hearings); State ex rel. Mo. Pub. Defender Comm'n v. Waters, 370 S.W.3d 592 (Mo. 2012) (holding that a trial court must consider whether appointing counsel to a case will cause counsel to violate the Sixth Amendment and ethical rules); Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010) (holding that people accused of crimes could maintain a class action suit seeking counsel at arraignment and subsequent critical stages); Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) (holding that people accused of crimes could maintain a class action suit seeking counsel in misdemeanor cases).
132. Lefstein, supra note 81, at 162-89.
133. Stephen F. Hanlon, State Constitutional Challenges to Indigent Defense Systems, 75 Mo. L. Rev. 751 (2010).
134. The E. Barrett Prettyman Program at the Georgetown University Law Center has provided graduate and undergraduate clinical experience in criminal defense for over fifty years.
135. See, e.g., Lefstein, supra note 81, at 191-228 (describing some programs that provide high-quality representation).
136. See Justice Denied, supra note 47, at 181-213 (setting out extensive recommendations with commentary); Lefstein, supra note 81, at 230-68 (making recommendations to improve representation and suggesting strategies for achieving them); Ten Principles, supra note 3, at 1-3 (setting out basic principles based on numerous studies, reports, and guidelines).
137. Gideon v. Wainwright, 372 U.S. 335, 345 (1963).