By Meagan Day

Right now, hundreds of poor people are sitting in Louisiana prisons without access to lawyers. How can this be, when the Sixth Amendment guarantees every citizen’s right to legal counsel?

“Of all the rights that an accused person has,” declared the Supreme Court in 1791, “the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” And yet, more than two centuries after those words were written, Louisiana’s public defenders are essentially closing up shop, leaving poor people in the lurch.

The current fiasco makes a lot more sense if you consider that the concept of public defenders is only half a century old. Yes, the Constitution guarantees right to counsel. But American democracy often looks better on paper than in practice, and the matter of legal representation is no exception. During the nation’s first 150 years, indigent defendants were regularly prosecuted without a lawyer present.

The Scottsboro Boys with lawyer Samuel Leibowitz, 1932 © uscourts.gov

In 1932, the Supreme Court heard the first important case regarding adequate legal counsel for the poor. A group of nine black men in Alabama were accused of raping two white women. The men had been train-hopping between Chattanooga and Memphis, and got into a scuffle with some white men, who reported the crime. The women were only consulted later, and one of them eventually confessed that she fabricated the story under pressure.

The Scottsboro Boys, as the accused were called, were given a speedy trial and sentenced to death by an all-white jury. The next year, in Powell v. Alabama, the United States Supreme Court reversed the convictions on the basis of inadequate legal representation. “The necessity of counsel was so vital and imperative,” the Supreme Court decided, that the court’s failure to provide it was “a denial of due process” and therefore unconstitutional.

But Powell v. Alabama was not a silver bullet. Plenty more poor people were prosecuted without lawyers in the early 20th century. The Supreme Court even backpedaled in 1942, deciding that only the illiterate needed to be appointed lawyers. It wasn’t until 1963 that the foundation for the current system — whereby “if you cannot afford a lawyer, one will be appointed for you” — was laid.

In 1961, somebody broke into the Bay Harbor Pool Room in Panama City, Florida, smashed a cigarette machine and a jukebox, and stole away with about $5 worth of coins. A man named Clarence Earl Gideon was charged on the basis of testimony from a single witness. Gideon couldn’t afford a lawyer, and the court rejected his request for free counsel. On his first appearance, during which he was compelled to represent himself despite his lack of education, he told the Florida judge, “The United States Supreme Court says I am entitled to be represented by counsel.” The court simply shrugged and convicted him.

Clarence Earl Gideon’s mugshot, 1961 © State Library and Archives of Florida

But Gideon was determined to secure effective counsel for himself and overturn his conviction. He studied law books in prison, and penned a handwritten appeal to the Supreme Court. Later, Robert F. Kennedy would applaud Gideon for his persistence in the face of abandonment by his government:

“If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was retried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”

Two thousand Florida inmates, who had been too broke to afford lawyers and had not been granted them, were released without retrial after the Supreme Court’s 1963 decision in Gideon v. Wainwright. For technical reasons, Gideon himself wasn’t one of them — but he was granted a retrial, and later released. When he died less than a decade later, his impoverished family buried him in an unmarked grave. The ACLU stepped in and made a gravestone for him, featuring a quote from a letter he had written to his lawyer.

Gideon’s court case led to the development of public defender programs nationwide. But the mere existence of these programs is not enough. Public defense departments are often overburdened to the point of inefficacy — or, in the case of Louisiana, near-total paralysis. According to a report released in 2011, 73 percent of nationwide public defense offices don’t have enough attorneys to handle their caseloads. Why? Because they simply aren’t allocated the money to pay for them.

The problem is that while individual states recognize the constitutional necessity of providing public defenders, there hasn’t been a major effort to fund them. “Criminal defendants and prisoners have little or no political power,” explained Anthony Lewis in the New York Times. “Legislators see no votes in assigning competent lawyers for poor defendants or giving lawyers the resources to do their job properly. The Clarence Earl Gideons of this world are constituents who can safely be ignored. Many are barred from voting, and the rest seldom bother.”

In Louisiana, much of the revenue spent on public defenders was until recently gathered from issuing traffic citations. It was a perplexing system: The very source of revenue actually reinforced the problem. In order to decrease the burden on its courts and prisons, Louisiana stopped issuing so many traffic citations a few years ago. But the state made little effort to find an alternative source of revenue to pay lawyers for the poor. In the last few months, public defense departments in Louisiana have been stretched so thin that they’ve started putting poor people on interminable wait lists, or outright refusing to represent them. Assessing the current state of affairs, you’d think Powell v. Alabama and Gideon v. Wainwright had never happened.

The establishment of public defense departments in every state and every major municipality was a huge victory for the constitutional rights of the poor. Still, thousands of modern-day Gideons await representation in Louisiana and elsewhere.

It’s been 225 years since the Supreme Court first ruled that the poor deserve to be defended. But without legislative attention and proper funding, Americans’ fundamental right to counsel remains unprotected and unrealized.