by Stephen B. Bright and Sia M. Sanneh. Bright teaches at Yale Law School and is President and Senior Counsel of The Southern Center for Human Rights in Atlanta. Sanneh is the Senior Liman Fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama.
Exactly 50 years ago, in Gideon v. Wainwright, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the law.” In later decisions, the Court ruled that a poor person facing any loss of liberty must have a lawyer “so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”And yet, a half century later this right is violated every day in thousands of courts across the nation, at every stage of the process.
In our forthcoming essay, Fifty Years of Defiance and Resistance After Gideon v. Wainwright, to be published in the Yale Law Journal, we chronicle the day-to-day denial of counsel in counties throughout the country; the refusal of governments to provide adequate funding for lawyers for the people they seek to convict, fine, imprison and execute; the complicity of judges in the denial of counsel; the enormous and unchecked power of prosecutors to decide cases, including sentences, often with little or no input from defense counsel; and the Supreme Court’s decision to paper over and ignore violations of the right to counsel instead of correcting them.
As we argue in our essay:
The cost of this one-sided system is enormous. Innocent people are convicted and sent to prison while the perpetrators remain at large. Important issues, such as the system’s pervasive racism—from stops by law enforcement officers to disparate sentencing—are ignored. People are sentenced without consideration of their individual characteristics, allowing race, politics, and other improper factors to influence sentences. Over 2.2 million people—a grossly disproportionate number of them African Americans and Latinos—are in prisons and jails at a cost of $75 billion a year. Nearly an additional five million people are on probation, parole, or supervised release. Over seventy thousand children are held in juvenile facilities. Even those who have completed their sentences may be deported, denied the right to vote, dishonorably discharged from the Armed Forces, denied public benefits, and denied business or professional licenses. Reentry into society is extremely difficult, extending the costs to the families and communities of those who have been imprisoned.
There are expressive costs as well. A system in which all of the key actors routinely ignore one of its most fundamental constitutional requirements is not a system based on the rule of law, no matter what it claims to be. When those actors shirk their constitutional obligations and bring the immense power of the state down most heavily on African Americans and Latinos, people cease to have confidence in the courts. The system lacks legitimacy and credibility and is undeserving of respect. For this to change, courts, legislatures, executives, and members of the legal profession will need to respond with a sense of urgency and commitment to justice that has been missing in most places during the last fifty years.