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Historic Legal Right At Risk

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By WALTER F. MONDALE Special to The Washington Post

The Tampa Tribune

Published: March 14, 2009

More than 45 years ago, as attorney general of Minnesota, I joined with the attorneys general of 21 states in asking the Supreme Court to ensure that counsel would be appointed for all people facing criminal charges who could not afford it. The court answered our plea. Yet today, its historic decision in Gideon v. Wainwright is at risk.

In Gideon, the Supreme Court ruled that Florida violated the Constitution when it refused to appoint counsel for Clarence Gideon, a defendant who lived in a rooming house and had just $25 to his name. The opinion recognized the "obvious truth" that "in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."

Yet states across the country routinely fail to appoint counsel to people who are genuinely unable to afford representation on their own. A report published by the Brennan Center for Justice at NYU Law School last fall, "Eligible for Justice," found that if Gideon were to face criminal charges in Florida today, for example, he might well be denied a public defender. Under Florida law, he could be disqualified for counsel if he has assets exceeding $2,500 (excluding a house), a car valued above $5,000, or had posted bail of more than $5,000, even if none of those assets permitted him to pay the retainer - often several thousand dollars - that defense lawyers routinely charge.

These standards effectively work to deny counsel to people who truly cannot afford to hire representation. As a result, people are forced to defend themselves and can be wrongly convicted. That is what happened to Clarence Gideon. In his first trial, in which he represented himself, he was found guilty and sentenced to five years in prison. After the Supreme Court required the appointment of counsel, he was retried and acquitted.

This month marks the 46th anniversary of the ruling. It is crucial that the states rededicate themselves to providing competent defense counsel to all people facing criminal charges who cannot afford to pay. The federal government, too, has an important role in providing the states with technical assistance, monitoring their compliance and enforcing the constitutional right to counsel.

Walter Mondale is a former U.S. vice president and senator.

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