We The People: Legal Representation

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For the conviction of the accused, every weapon is provided and used, even those poisoned by wrong

and injustice. But what machinery is provided for the defense of the innocent?

None. Absolutely none.

It's 1893, and a well-known lawyer named Clara Foltz

has traveled halfway across the country,

all the way from her home in California,

to give a speech at the World's Fair in Chicago. Counsel for the defense is an absolute essential to the just examination of a case.
A trial without it would be little less than a farce. 26 million people would pass through the fair that year.
People flocked there to see new inventions, like the Ferris wheel and Cracker Jacks, and to hear new ideas. The remedy for many of the evils of the present criminal court practice lies in the election or appointment of a public defender.
For every public prosecutor, there should be a public defender chosen in the same way and paid out of the same fund. This speech in 1893 cemented Clara Foltz as a pioneer in U.S.
legal history because her proposal was revolutionary. She was one of the first people who came up with this whole idea of the public defender in the United States.
Clara Foltz was actually the first woman to be licensed to practice law in California. As a woman, it was difficult to get hired at, you know, a law firm or take on paying clients.
And so what she would do was go to the criminal courts and see if the judges might appoint her defendants who were on trial and couldn't afford a lawyer. And what she found was appalling.
She described, you know, smelling whiskey on the breath of the other lawyers who had showed up to take these cases. Plus, other lawyers who take on clients and then extort their families for as much money as they could.
There were also lawyers who might have been well-intentioned, but were just very young and starting out and didn't really know how to handle a criminal case.

And there were people who had no lawyer at all,

which is why Clara Foltz came up with this idea in the first place.

If the government on the prosecution side is hiring what we would call a district attorney or a public prosecutor to prosecute the case, and they get paid by the government. Why not hire also a government official on the other side who could really specialize in this kind of work? A public defender.
At the time, her idea was not necessarily well received by audiences. Newspapers referred to the idea as ridiculous, quote, or strange, or this is kind of this wacky woman lawyer out in California who has this kind of new idea.
And for a long time, that was how people thought about the idea of public defenders, with a deep suspicion. For decades, people fought against the notion that lawyers working for the government could both prosecute and defend crimes.
It was a conflict of interest, they said, a government takeover of the legal profession, totalitarian and communist even. But these days, most of us take it for granted that if we're ever in court and we can't afford a lawyer, one will be provided for us.
80% of people who are charged with crime need a public defender. 80%! Four of every five people charged with a crime.
When you think about it, it's staggering. I don't think that anyone could have anticipated how rapidly our criminal justice system has grown.
Public defenders have actually become the backbone of the legal system in the U.S. They're the walking embodiment of the right to, quote, assistance of counsel written into the Sixth Amendment, a right that's been on the books for more than 200 years.
But it's actually only much later that the courts are going to interpret the Sixth Amendment to actually say, well, the state has an obligation to actually provide a lawyer for you. So how? How did lawyers for people in need go from a shady, suspicious concept to bearing the brunt of our current legal system? Why are public defender offices so overloaded and underfunded? And in our current age of mass incarceration, is the public defender system equipped to live up to its promise? I'm Ramtin Arablui.
I'm Randa Abedfateh. On this episode of ThruLine from NPR, the history of public defense.

It's part of our series, We the People, looking at the past, present, and future of amendments to the U.S. Constitution.

Why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.

Today, the Sixth Amendment and what the government owes us. Hi, this is Lissa Mandel from Astoria, Queens, and you're listening to TrueLine from NPR.
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Just to take a step back for a second, let's talk just about the idea of having the right to legal defense, even if you can't afford it, or legal defense, period. That comes from the Sixth Amendment to the Constitution.
Can we just talk about what the Sixth Amendment is and how people were thinking about it by the time Clara Foltz comes along? Sure. So the Sixth Amendment is part of the Bill of Rights, which are the first set of amendments to the Constitution.

This is Sarah Mayu.

Law and history professor at Vanderbilt University.

And author of the book Free Justice, a history of the public defender in 20th century America. So the Sixth Amendment deals in particular with criminal prosecutions.
It's the amendment that guarantees the right to a quick trial with an impartial jury to know what you're being charged with and to call witnesses. And one of those protections mentioned in the Sixth Amendment is that the accused shall have the right to the assistance of counsel for his defense.
When the Sixth Amendment was first ratified, what they seem to have meant by the right to the assistance of counsel was that if you have a lawyer, then when you show up at court, the judge has to allow that lawyer to appear in court and can't interfere with your choice of counsel or your ability to have that lawyer speak on your behalf. But because in England, historically, actually, there were situations where defendants actually were not even allowed to hire a lawyer and had to just kind of defend themselves.
So up to that point, just so I understand, most legal experts, most of society did not interpret the Sixth Amendment as, hey, you get a lawyer no matter what. If you're being like, let's say you commit a crime or petty crime or some sort and you get arrested and you're getting prosecuted for it.
All it means is that you can bring a lawyer to the courtroom if you can afford one. Right.
Now, I will say it might be the case that if you are on trial for a murder or a serious matter like that and you don't have a lawyer, the judge might just as kind of a case by case matter, try to help find a lawyer or appoint a lawyer to represent you. But certainly there was no sort of entitlement or guarantee of that necessarily.
And in very low-level criminal cases, people would just routinely appear and go through the whole case without ever having a lawyer. So Claire Foltz comes along and basically says it makes sense for the government to not just be providing funds for the prosecution, but to also provide funds or some kind of office, some kind of structure to then defend people who are being prosecuted.
When does that idea start to pick up steam? You know, because this is in the late 19th century. does at some point other people start, like her argument starts to catch on? And where does it catch on and how? It catches on in a very patchwork way in some places earlier than others.
And it really depends where in the country you're talking about. In California, there are public defender offices by the 1920s.

In Chicago, the Cook County Public Defender Office dates to the 1930s.

But these were exceptions to the norm.

In a lot of the country, particularly in the deep south or rural areas, there was not really

any kind of organized institutional infrastructure for this kind of effort. And so Clara Foltz took her idea for a public defender office on the road to places without one.
And she wasn't just making speeches. She was putting in work to see her idea become a reality.
She drafted model legislation, wrote actual state bills to create county public defender offices, and then lobbied politicians and state houses across the country to pass it, which was an uphill battle. Historically, the United States has this very adversarial legal culture.
The traditional idea was that because they're adversaries,

the... United States has this very adversarial legal culture.
The traditional idea was that because they're adversaries, the lawyers on the opposite sides of the case can't both be working for the same entity or they can't both be getting paid by the government because there was some concern that would create a problem of divided loyalty. But I think also more generally, it just kind of contributed to the idea that, well, if the government starts hiring defense lawyers, is that kind of encroaching on a government takeover of the legal profession or something like that? I also want to understand the systemic problem that was there.
One thing we haven't talked about is that people just, and it's still the case now, people don't have money.

Like people just don't have money.

They get charged with something and people don't have money to get a lawyer for them. So they end up going in by themselves.
But as prosecution got more sophisticated, the kind of legal defense seems to me would need to get more sophisticated as well. So what was the like social problem that they were identifying? So absolutely.
One problem is just simply that it's always been true that most people charged with crimes tend to be poor. The defendant is not going to be someone that has the resources to go and sort of hire a lawyer on their own or even necessarily knows how to navigate that.
And you can't really, though, expect people to represent themselves in court. The legal system has become increasingly modern and complex.
So there's this sense that you really need a lawyer on the defense side of the case. And moreover, you also need a lawyer that actually is putting some effort into, you know, investigating and preparing the case, that it's not good enough to just kind of hire, appoint someone the morning of the trial that happens to be in the courtroom and let them improvise on the fly.
There's also a more specific set of concerns around ways in which the criminal courts are being used to target African-Americans in the community or in California. There might have been a concern with prejudice against, for example, there's a longstanding Mexican-American community.
A lot of cases start to attract both national and even international outrage,

in which you have examples of injustice that appears really targeted along racial lines.

It's March 1931, the middle of the Great Depression. You're on a freight train, crowded with homeless and jobless people.
White and black, mainly young, many riding the rails in search of work. You see a fight break out between a group of black teens and a group of white ones.
The white teens lose, with some forced off the slow-moving train. At a station in a small town in Alabama, the The train comes to a halt.
The white teens pushed off the train had run to a nearby station and reported they'd been attacked by a gang of black teens. The station master wired ahead.
And while the train chugged along, a posse of armed white men had formed. They get stopped around the town of Scottsboro, and you have a group of nine black teenagers pulled off the train.
The posse of men also find two white stowaways, a young woman and a teenage girl, who make a shocking claim about the black teens. It turns out falsely, but have accused them of raping them on the train.
The nine Black teens are arrested. They're between 13 and 19 years old.
The Scottsboro courts rush them basically within a matter of days through a death penalty trial. And they're convicted and sentenced to death.

Eight of the nine, all but the youngest, sentenced to die.

This was a very famous case that if you had been living in the 1930s would probably have heard about.

It's an example of a type of case that people referred to as legal lynching. Now, the judge did appoint a couple of lawyers that were in the town to represent them theoretically.
But remember, this trial happened within a matter of days. There's nine defendants.
It's a death penalty trial. The lawyers actually didn't do anything to represent them.
They didn't have time to investigate the case. They actually didn't make any opening or closing argument at the trial.
And so they didn't actually provide meaningful representation. And that could have been it.
But times were changing. 200 organizations join fight to save nine Scottsboro boys.

Scottsboro demonstration in Union Square tomorrow. Scottsboro lads, victims of hideous class frame up.
This case becomes an international cause. Actually, the Communist Party takes this up as a horror story of, you know, the worst case scenario of capitalist and racist injustice in the United States.
At the time, the Communist Party was trying to make inroads in the U.S. and defending civil rights was a cornerstone of their platform.
The party organized marches, meetings, and letter-writing campaigns to defend the boys.

It becomes implicated in global politics and organizing, basically.

The Communist Party's legal defense wing

took the Scottsboro boys on as clients,

and party-affiliated lawyers

helped the boys appeal their death penalty conviction

all the way up to the U.S. Supreme Court.
The United States Supreme Court issues an opinion called Powell v. Alabama, which holds that their initial trial violated the constitutional requirements of due process or a fair trial because basically they didn't have legal counsel in their trial.
And that opinion written by Justice Sutherland has this very lengthy passage about why it's so important to have defense counsel in a criminal trial. He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Supreme Court Justice George Sutherland.
What is the impact of this decision in terms of the Scottsboro boys themselves? Well, unfortunately, the long story of the Scottsboro cases does not end in a very happy way because when the Supreme Court sends the case back to Alabama, Alabama keeps trying to retry some of them. And eventually all of them were exonerated.
But by that time, it had been years of their lives. Many of them met with tragic ends.
I don't think that the Supreme Court decision really was able to, you know, right the injustice in that particular case. It wasn't until 2013, more than 80 years after they were falsely accused and wrongly convicted on rape charges, that Alabama posthumously pardoned the final Scottsboro boys.
But it is nevertheless important as putting kind of into the law books of the United States this idea that the state actually had an obligation to see to it that effective representation was provided. And so that precedent is going to become important over time and built on over time.
In the case, the court laid out that at least in capital cases, having a lawyer was necessary for a fair trial.

But still, over the next decades, the notion of a government-funded office dedicated to defending people accused of crimes was suspicious, tainted with communism and socialism.

But coming up, public defenders get a patriotic makeover.

Hi, this is Chelsea and Katie calling from Philly.

You're listening to NPR's ThruLine.

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The Communists honestly believe in the doctrine that the highest welfare of the human race is to be attained only by complete subservience to an all-providing state. I do not understand that that was a doctrine of the authors of our Bill of Rights.
Nevertheless, great danger now faces our country, that it will become a doctrine of ours. In 1956, the federal judge Edward J.
DeMock published an article in the Legal Profession's national magazine warning about the totalitarian-like nature of the public defender system. The idea of a broader public defense system had been kicked around, and Judge DeMoc was clear.
He wanted nothing to do with it. It was essentially the police state, he wrote, and he set up a thought experiment for his readers.
Put yourself in the place of a poverty-stricken Puerto Rican who does not speak English and who, though innocent, has been identified by bystanders as the man who fatally stabbed a government narcotics agent who is attempting to make an arrest in an East Harlem Street crowd. How would you like to be told that another government official would act as your representative? His view was widely shared, but the Scottsboro case had changed something.
It's like a opening, right? And it's not, it's in the 1960s with another court case where that really starts to, where it comes together. Can you talk a little bit about who Clarence Gideon was and the story of his case, Gideon versus Wainwright? Sure.
So yeah, Gideon is a very famous Supreme Court decision and it is decided in 1963. So if we jump ahead 30 years from the Scottsboro case to 1963, we are now in what we call the Warren Court era under Chief Justice Earl Warren, which is the era in which the Supreme Court decided Brown v.
Board in the school desegregation case and all these sort of landmark decisions. And Gideon is certainly one of those cases.
Now, Gideon himself, his full name is Clarence Earl Gideon. He was a 50-year-old white man living in Florida.
He dealt with alcoholism and he dealt with a gambling problem and had a string of kind of petty theft convictions. So he had been kind of in and out of prison.
But the case that ultimately becomes Gideon versus Wainwright, it's not really the crime of the century exactly, but he was convicted of breaking and entering into a pool hall in Panama City, Florida, and stealing some wine and cigarettes out of that pool hall. And so he's tried for that crime.
And he actually asked his trial judge, you know, I don't have a lawyer, can you appoint a lawyer for me? And the judge said, well, you know, at the time in Florida, the rule was that if this was a capital case, or you were kind of on trial for murder, the judge would appoint you a lawyer. But this is just kind of, you know, you stole some cigarettes, so we don't have to provide you a lawyer.
It's not that big of a deal. You can kind of deal with it on your own, basically.
He's tried and convicted without a lawyer. And while he's in prison in Florida, he actually writes a handwritten legal petition complaining about the fact that he was convicted without the benefit of counsel.
I, Clarence Earl Gideon, informs this court that I am a pauper without funds or any possibility of obtaining financeable aid. And I beg of this court to listen and act upon my plea.
And he sends it to the Supreme Court in Washington, D.C.

I did not have a fair trial and was denied my constitutional rights that is guaranteed by the Constitution and the Bill of Rights by the United States government.

The funny thing about this case is that the Supreme Court, like any government institution, is probably receiving hundreds of letters complaining about things from people all of the time, and they don't really respond to that usually because they have, you know, they just don't have time. But in this case, the justices actually noticed Gideon's handwritten petition, and they actually agreed to hear his case as a Supreme Court case.
I want to understand why they would have like taken this dude's handwritten note and decided to take on this public defender issue. In a weird way, the Gideon case is a great case precisely because it's not an international scandal like the Scottsboro case.
It seems like a pretty ordinary criminal case. And so they wanted to really force themselves to actually have to decide, do you have the right to counsel in all criminal cases? because before that time, they had always suggested that, well, if it's a really complicated case,

or it's a murder case or something like that. But Gideon's case allowed them to really just decide, okay, across the board, does every criminal trial require the state to appoint counsel? So the irony of this case is that Gideon, who did not have a lawyer at all at trial, is represented at the Supreme Court by a very, very well-connected member of the legal establishment.
Because the chief justice appoints a lawyer named Abe Fortas to argue Gideon's side of the case. Mr.
Fortas, Mr. Chief Justice, may it please the court.
Abe Fortas is an icon of the D.C. power elite of the time.
He's a friend of Lyndon Johnson. He drives a Rolls Royce.
And so it's kind of ironic that Gideon sends his handwritten petition, but the court then appoints a very sort of high-powered lawyer to argue the defense. A criminal court is not properly constituted, and this has been said in some of your own opinions, under our adversary system of law, unless there is a judge, and unless there is a counsel for the prosecution, and unless there is a counsel for the defense.
Without that, how can a civilized nation that it is having a fair trial? And ultimately, the Supreme Court rules unanimously in favor of Gideon and holds that it's true that his Sixth Amendment rights were violated because when he asked the judge for a lawyer at his trial, the court says that the court should have appointed him a lawyer. The opinion describes defense counsel as necessities, that it's not a luxury, but it's actually necessary for a fair trial.
Any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.
Supreme Court Justice Hugo Black. The case gets sent back to Florida for a retrial.
he's represented now at trial by yet another lawyer,

a lawyer locally in Florida who represents him at trial. And he actually was acquitted the second time around.
So it kind of illustrates that, okay, well, if you have a lawyer, you actually might have had a good case after all. so how is this decision received? Is it seen as a big monumental kind of landscape changing decision? Well, it's received fairly well, I would say.
It certainly gets a lot of attention. It's on the front page of the New York Times.
It then became the subject of a book called Gideon's Trumpet. That book packaged the story kind of for the general public, and it became a very celebrated case, and it kind of becomes almost this symbolic representation of the American commitment to individual rights and to fairness and to equal justice.
How much does the kind of Cold War tension and cultural kind of volatile moment play into why people were receptive to this decision, saying like, yeah, people do need counsel? In this context, I actually found a lot of primary sources where lawyers would specifically say, you know, we're fighting the Cold War. The thing that distinguishes totalitarian justice from democratic justice is that in a communist regime, for example, or a dictatorship, you know, they might have some show of a criminal trial in some sense, but the outcome of the trial is a foregone conclusion.
And lawyers really celebrated the American courts in contrast for being this truly open process. And if you can convince the jury that the government hasn't proved its case, then you go free.
And so there was this real celebration of the criminal courts as this democratic commitment to individual rights and the right to challenge the government. And so against that backdrop, it's funny because, you know, at one point you might have heard lawyers saying, well, I don't know, government provided defense counsel itself might sound kind of like a socialist type of an idea.
But instead, by the

1960s, when you get Gideon, the defense lawyer is kind of this cultural icon and this sort of symbol of the commitment to individual rights as a real hallmark of democracy. When does that decision translate into the beginnings of

Public Defender

offices opening.

Like... hallmark of democracy.
When does that decision translate into the beginnings of public defender offices opening? Like, we've heard all this stuff, but like, when do actual public defenders start working and doing their job as we know it today? Gideon itself doesn't actually say that, okay, your local county now has to establish a public defender office. It just says every defendant in a serious criminal case, the state has to provide that defendant with a lawyer.
And so although there already were some places that had public defender offices, what you see in the late 1960s and early 1970s is this nationwide effort to expand those existing offices or if there wasn't a public defender office to get one up and running. But there's actually a lot of disagreement at the local level over the years about what exactly that should look like and who exactly should pay for it.
So Gideon didn't really answer any of those questions. It just kind of left it to every community to figure out on their own.
There was no sort of logistical plan in place for how this was going to get carried out. And it was sort of a disaster.

Coming up, how Gideon's promise played out.

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Find a Warby Parker store near you at warbyparker.com slash retail. Today, the right to an attorney is such a given that it's all over pop culture.
Get your hand out. You have the right to an attorney.

If you cannot afford an attorney, one will be provided for you at no cost. I have the right to an attorney.
If I cannot afford an attorney, one will be appointed to me by the court. You have the right to an attorney.
You have the right to consult an attorney and to have one present. You have the right to have an attorney present during questioning.
Yeah, I understand. I understand the right.
But in practice, and in our age of mass incarceration,

should we be rethinking what the right to counsel actually means? When the Supreme Court handed down the Gideon decision in 1963, the country looked different. 1963, I mean, the carceral population, the number of people that were in prison then, I think is somewhere around like 350,000.
And the sort of percentage of people who qualified for an appointed lawyer is about 40%. So for the Supreme Court to say, hey, everyone who's under-resourced, indigent, qualifies gets a lawyer, didn't seem like that big of an ask.

Maybe not.

But today, the U.S. has around 2 million people incarcerated.

And public defenders take on as many as 80% of all criminal cases.

So public defenders across the country today regularly work triple the caseload they can effectively handle.

In some counties, public schools have been a defenders across the country today regularly work triple the caseload they can effectively handle. In some counties, public defenders individually take more than 350 felony cases in a given year.
And many offices don't have enough funding to improve things. Public defense is one of the least popular things to fund.
That was true in the early 60s. It's still true today.
And if you don't put a plan in place for how public defenders will, you know, get funded, hired, trained, recruited, maintained, it can really vary from state to state. to understand the reality of what actually happened after the Supreme Court's decision in the Gideon case and why the public defense system is still riddled with holes in it, I sat down with someone who is steeped in studying and teaching about public defense.
My name is Alexis Hoag Forger and I'm a professor at Brooklyn Law School. I'm the co-director of our Center for Criminal Justice and a Dean's Research Scholar.
Alexis also served as a federal public defender in Tennessee. She wasn't the type of public defender representing people at trial.
Her clients were people on death row who wanted to appeal their convictions. It was very humbling work, fulfilling work.
And you're dealing constantly with people that have been hurt and broken and have also enacted hurt and brokenness on others. There's a quote in one of your articles that says, one cannot tell a history of public defense without interrogating the political, social, and legal status of Black and other non-white people charged with crime.
Why do you think we need to look at the history of public defense through this lens? You can't in this country think about crime and punishment without thinking about race because it has always been inextricably linked. Let's go to a specific case as it relates to this, which is in the 1980s.
There's the case of David Leroy Washington. Yeah.
So David Leroy Washington was charged with multiple murders in Florida. In the 1970s, David Leroy Washington went on a crime spree and ultimately killed three people.
He couldn't afford a lawyer, so the court had appointed him one. And over the objections of that lawyer, David Leroy Washington pleaded guilty to robbery, kidnapping, and murder charges, telling the judge he'd rather die than rot in jail.
His lawyer admittedly was overwhelmed, felt pretty hopeless about the case. And traditionally, at the sentencing hearing, lawyers have a duty, and Mr.
Washington's lawyer had this duty in the early 80s, to put on mitigating evidence. Diving into somebody's mental health history, often the mental health history of their family members, relatives, and just figuring everything out about this person and putting it on in a sentencing hearing to spare this person the death penalty.
So Mr. Washington, his lawyer made a few phone calls, didn't put on a whole lot of evidence, and the judge sentenced Mr.
Washington to death. Wow.
After the trial, David Leroy Washington sued the state, saying his lawyer didn't really do anything meaningful for him. That his lawyer made little effort to call witnesses or talk to loved ones.
That he didn't request a psychiatric report or make a meaningful closing argument. That case eventually worked its way up to the U.S.
Supreme Court. These are very bad facts in terms of the nature of the murders, but they're also really bad facts in that the lawyer didn't really do much of anything.
And the Supreme Court, in considering what is the constitutional standard, was like, well, basically what Mr. Washington's lawyer did was enough.
Justice Sandra Day O'Connor wrote the majority opinion. The facts of this case make it clear that counsel's conduct at and before respondent's sentencing proceeding cannot be found unreasonable under the above standards.
They also make it clear that even assuming counsel's conduct was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence. Supreme Court Justice Sandra Day O'Connor.
She cites this somewhat obscure case,

Michelle v. Louisiana, which was decided sort of in the height of Jim Crow in Louisiana.

It originated in Louisiana. It was decided by the U.S.
Supreme Court. But it was basically,

there was a Black defendant who was convicted of raping a white woman and he was sentenced to death. This was back when rape alone and not in combination with murder could result in the death penalty.
This was disproportionately applied to black men accused and convicted of raping white women. So this was the petitioner in this case.
He was appointed a lawyer who happened to be white because that's the vast majority of lawyers in Louisiana at the time. And the lawyer was sick in bed for one year, did not make an appearance on the case, and then withdrew from the case.
Wow. Failed to file a critical motion challenging the grand jury, which had no black people on it.
They were completely excluded, which was hard to do in Orleans Parish unless you were excluding people based on race. And he brought this issue, ineffective assistance of counsel, up before the U.S.
Supreme Court. And the Supreme Court was like, you had a lawyer.
He was a member in good standing of the bar. And there is no evidence that he lacked competency.
So we don't talk about this a lot, but that's the case that Justice O'Connor cited in the 1984 position or 1984 decision in Strickland. This idea of what is reasonable, reasonable conduct is directly from Michelle versus Louisiana.
And there's this idea that just, you know, this black defendant who'd been convicted of raping a white woman, like how dare he accuse his white lawyer of incompetency when the guy was in good standing, even though he literally did nothing on the case and was sick in bed for a year. Wow.
So it's like basically saying you did the crime, you deserve whatever you get. It doesn't matter.
There's a kind of mercilessness to it, but also one in which logic goes out of the door. Yeah.
In Sandra Day O'Connor's ruling and with the court's interpretation of the Sixth Amendment, the Supreme Court did create this new mechanism, a way for people to say that their lawyer had given them inadequate representation. They'd have to prove two things.
One, that their lawyer's performance was so deficient that it didn't count as the counsel guaranteed by the Sixth Amendment.

And secondly, that that deficient performance changed the outcome of their case. My objection to the performance standard adopted by the court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied.

Supreme Court Justice Thurgood Marshall. I want to talk about Thurgood Marshall's dissent.
So the ruling happens. Can you talk a little bit about what Thurgood Marshall's dissent was and what case he was trying to make basically against the majority? Yeah.
So, I mean, Thurgood Marshall at the time that Strickland versus Washington was decided was the only person on the court who had ever represented somebody who was poor and charged with crime. So Justice Marshall really took issue with the fact that a defendant had to prove there would have been a difference in my outcome.
I would have been acquitted of the charges. I wouldn't have gotten the death penalty.
Justice Marshall was like everybody, even people who have engaged in criminal conduct are just as deserving of quality representation. The Sixth Amendment guarantees that representation to everybody, not just people who can demonstrate actual innocence or a reduced sentence.
And so he was very, very troubled. And he said that if a defendant is able to demonstrate that their lawyer was acting deficiently or performed efficiently, that should be enough.
And what has happened since 1984 is really deplorable representation basically passes muster. Attorneys that have been intoxicated, asleep at trials, openly racist against their client's identity are deemed to be, quote unquote, constitutionally effective.
Wow. What's fascinating about this is that if the manifestation of this ruling

is that people will,

you know, you'll have,

you know, lawyers drunk

or completely, you know, out to lunch

in their, you know, representation,

that's considered enough.

Clara Foltz in California,

this is what she was seeing in courts.

This is why she was advocating

for public defenders in the first place is she was seeing this inadequate defense for many people.

Exactly. And there are these looming external forces that we haven't even really talked about that make a public defender's job so difficult to do, even if they're not, you know, the ones that like fall asleep and are intoxicated during

representation. They really want to be the very best lawyer for the client that they're appointed to represent.
And they just cannot because of these external forces. Lack of funding is a big part of it.
The caseloads are too high, which is related to the lack of funding. And then just the massive increase in the criminalization

of all kinds of conduct that is engaged in by poor people.

I mean, just not having a stable roof over your head.

You can suddenly be charged with all sorts of trespassing

that just wouldn't exist if you had a safe place to stay or public urination if you don't have a place, you know, to be. It brings us to this really shocking fact that I find still like wild.
The majority of criminal cases today are tried with a public defender as representation. 80%.
80%. which is a which is wild because when Gideon vs Wainwright was being you know ruled or even going all the way back to Clara Foltz probably in the beginning no one would imagine that this many people not only would have been involved in the criminal justice system but also would not have been able to afford an attorney what does that tell us about the fact that when they viewed it as an exception for people in need, it's now becoming the norm.
So if it's the norm, should the court, should our society look at public defending differently? Yes. At the time getting was decided, less than half of the people that were charged with crime needed public defenders.
We've also really shifted gears into, you know, in terms of what we decide as a society to criminalize. We have decided to prioritize funding punitive criminal sort of justice as a way to solve, and I'm using air quotes, our social issues.
If we would reroute some of the funding that we pour into policing, into the court system, into incarcerating people, and we poured it into early childhood education, mental health care, jobs training, we wouldn't have to throw all these people into prison. you know, this conversation can feel very disheartening.
It doesn't seem like the social wealth inequality stuff is changing anytime soon. Perhaps there's been some downturn mass incarceration, perhaps, maybe that's debatable.
If those aren't changing, how does the Sixth Amendment, how is that going to work in the current context? Does the Sixth Amendment itself need to be looked at again? What do you think are some possible ways forward or solutions that could be taken on to start to allay this problem that we have right now with public defenders being sort of overworked and underfunded? Yeah, so it's not just increasing the number of public defenders to decrease caseloads, which, yes, should happen. But the other thing that can happen is that prosecutors can bring fewer cases.
Prosecutors have almost unlimited discretion, as long as they're not operating in a racially discriminatory way,

to bring charges or to not bring charges. And, you know, this actually happened during the pandemic and the sky didn't fall.
There are actually a number of pressure points

that could be released. So it's not just upping funding with public defenders,

it's prosecutors bringing fewer cases. And that's it for this week's show.
I'm Randa Abdel-Fattah. I'm Ramtin Adab-Louis, and you've been listening to ThruLine from NPR.
This episode is part of our ongoing series, We the People, that takes a close look at the past, present and future of amendments to the U.S. Constitution.
Why they were created, how they've been enforced and why fights over their meaning continue to shape life in America. So please, if there's a particular amendment you'd like to know more about, write us.
We're at throughlineatnpr.org. Next week in our amendment series, We the People, the 14th Amendment, and equal protection of the laws.
It's Black people and Black voters who are key to getting the 14th Amendment ratified because they finally can vote when the 14th Amendment goes to the states. This episode was produced by me and me and Lawrence Wu, Julie Kane, Anya Steinberg, Casey Miner, Christina Kim, Devin Katayama, Peter Balanon-Rosen, Thomas Liu.
Irene Noguchi.

Fact-checking for this episode was done by Kevin Vocal.

Audio was mixed by Maggie Luthar.

Thanks to Johannes Dergi,

Kiara West,

Edith Chapin,

and Colin Campbell.

And a special thank you to Marissa Valinan Rosen,

Jeremy Ravinsky, Peter Valinan Rosen, Adam Bankser, Mitchell Rosen, Kelvin Grant, Samantha Tucker, and Devin Katayama for their voiceover work. Music for this episode was composed by Ramtin and his band Drop Electric, which includes...
Anya Mizani. Naveed Marvi.
Sho Fujiwara.

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