60 years later, landmark Gideon case still guides right to counsel

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” — Gideon v. Wainwright, U.S. Supreme Court, March 1963.

Sixty years ago, the landmark Gideon case held that the government is required to provide criminal defense lawyers at public expense to those accused by the state of a crime and facing jail. The Whatcom County Public Defender’s Office celebrated our 40th anniversary last year and our office’s advocacy has impacted state laws, rules and the lives of the clients and families we proudly represent. Public defenders are not just lawyers; we are a team of professionals representing the accused, including behavioral health specialists, legal assistants, and investigators.

The services our public defenders provide impact our whole community: more than 70 million Americans have been convicted of a crime; one in three families will have a family member with a criminal record; nearly half of Black American males and 40% of white males will have been arrested by the age of 23.

The work of today’s public defenders has changed with the use of law enforcement body cams, cellphone data and complex forensic and toxicology reports. Increases in unhoused populations, declines in timely mental health services and changes in the law have added complexity and increased pressure to the work. Public defenders strain under this workload, which is governed by caseload standards first developed in 1973. Washington must address systemic changes in the practice of law and revise our standards consistent with new national norms.

Unlike public defender offices, prosecutors and law enforcement receive significant state and federal dollars to defray the costs to local taxpayers. Of the approximate $247 million spent on public defense in Washington in 2021, only $6 million was provided by the state. As a result, public defense is sometimes seen as a disproportionate draw of local resources, while still comparatively underfunded.

Whatcom County spends considerable effort on progressive solutions rather than mass incarceration. Funding public defense is critical to these initiatives. We must also fund programs and services that reduce recidivism and incarceration rates and address substance use, mental illness and extreme poverty. Our prosecuting attorneys must develop and use programs to divert citizens from criminal legal system involvement, and refer them to programs that address the social determinants of public safety. The old approach of arrest and prosecution is harmful and ineffective. Our community must respond to the causes of criminal behavior, rather than simply incarcerate citizens and then return them to the community without any assistance or safety net.

It is important to reduce the number of citizens involved in the criminal legal system. The costs associated with prosecution, indigent defense, probation/supervision and incarceration are staggering. As this community weighs the decision to vote and fund a new jail, the community must demand we take measures to reduce incarceration and build a facility that is suitable for those reduced numbers. The blueprint to effect change will take effort, ingenuity, time and money.

We must strive, despite our personal or political differences, to create a just legal system. It involves out-of-the-box solutions to crime, like restorative justice that amplifies the voices of impacted people, and gradual divestments from the legal system to the health care and welfare system. But for now, the work continues by investing in public defense.

When the public defense system fails, we become purveyors of an injustice that almost solely impacts the accused, who are disproportionately economically disadvantaged, BIPOC and suffering from acute trauma or illness. Poor representation results in lengthier prison sentences, and incarceration of the innocent. With one in three people involved in the legal system, the demand for adequate public defense is a demand for representation for a friend, colleague or loved one.

Sixty years after Gideon, Whatcom County can be proud of our achievements in providing public defense services through changing times. But we cannot rest on those laurels as new challenges confront us. Those challenges demand our collective action.

The author is chief deputy at the Whatcom County Public Defender’s Office. Opinions expressed here are her own.