Retired U.S. Supreme Court Justice Sandra Day O'Connor is rethinking the mess the court made by taking Bush vs. Gore. But she shouldn't stop there.
While she's at it, O'Connor should reflect on what has happened since her disastrous 1984 decision in Strickland vs. Washington. O'Connor's majority opinion eroded the right to counsel by making it incredibly difficult for defendants to show that their court-appointed attorneys were ineffective. Since then, attorneys completely unprepared for trial and even those who have slept in court have passed the low, malleable bar her opinion set.
Of course, few lawyers are so inept that they will catch a few "Z's" at the defense table. But a public defender who is oppressively overloaded with cases amounts to the same thing and there are plenty of those. Neither one can give their client's case enough attention for a prepared defense.
Yet that is the system we have today. Fifty years after Gideon vs. Wainwright established the right to counsel for the poor a principle that the United States trumpets as central to fairness in an adversarial system and a bulwark against a tyrannical state that right is in shambles.
Longtime advocate for the poor, Yale Law School lecturer Stephen Bright, says "in this country, you are better off being rich and guilty than poor and innocent."
Think about that. For the least among us, our vaunted system of justice resembles a conveyor belt.
Public defenders in places like Miami-Dade County, New Orleans and Luzerne County, Pa., have caseloads so onerous that it is often impossible to provide anything more than the illusion of representation. Throughout the country the indigent defense system is rife with overwhelmed lawyers handling hundreds of cases beyond what the American Bar Association says is the maximum that should be ethically allowed.
They meet their clients for the first time only minutes before the client goes before a judge to plead guilty and be sentenced. Even defendants who are innocent will take a plea just so they can get the process finished.
U.S. Attorney General Eric Holder recently said the nation's indigent defense is in "a state of crisis."
The most obvious fix is money. Innocent people are getting convicted in Florida, according to findings by the Florida Innocence Commission, because the system is underfunded, especially public defenders.
But tough-on-crime politicians are not going to demand better representation for accused criminals or redirect scarce resources to fulfill the Constitution's requirement. It is up to the courts to force the matter.
Missouri courts are letting public defenders decline cases when their attorneys have reached a maximum caseload. It could be a national model to force the funding of more slots. The Florida Supreme Court is poised to decide a similar issue of excessive caseloads brought by the public defenders office in Miami-Dade County.
What is obviously missing is support from the U.S. Supreme Court the one institution that could make Gideon's promise a reality.
On Monday, the court's five-member conservative majority crushed the little guy defendant again by giving Louisiana a pass when it failed to fund the defense of an indigent man charged with murder and armed robbery. The man waited seven years before being tried and convicted largely due to this lack of funding. Yet this wasn't enough for the court's conservatives to say his Sixth Amendment right to a speedy trial was violated. All four of the court's liberals dissented from the court's decision to dismiss the appeal rather than rule on its merits.
In 1963, the Supreme Court unanimously decided that Clarence Earl Gideon, a ne'er-do-well in Panama City, Fla., and by extension all others too poor to pay a lawyer, "cannot be assured a fair trial unless counsel is provided to him."
That is still true. What has changed is that today's Supreme Court, and the one that O'Connor graced, doesn't have the courage, compassion or stomach for the job of policing that right in a meaningful way. O'Connor should regret that, too.