In Search of Gideon, Sixty Three Years Later

The Legislature should take steps to create a new, independent public defense system that's financed by social impact bonds.

“Of all the rights that an accused person has, 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.” United States v. Cronic, 1984. 

March 18th will mark the sixty-third anniversary of one Supreme Court’s most famous and impactful decisions, Gideon v. Wainwright. This landmark decision asserted that criminal defendants who cannot afford an attorney must be provided with one by the state in which they are charged, as per the sixth amendment of the United States constitution. 

The story, unfortunately, did not end with Gideon. Since the decision, the fight for the right to counsel has continued. In the decades following the decision, much of the country has failed to meet its promise and the courts have gradually weakened the Gideon mandate.

Maine’s public defense crisis has attracted national attention. We are the only state that relies almost entirely on private attorneys to represent low-income people accused of crimes. This has lead to a constitutional crisis that has snowballed for decades, as many thousands of Mainers unable to afford private counsel have been made to wait months in jail while they wait to be assigned an attorney from the Maine Commission on Public Defense Services, a roster of private attorneys who are overworked, understaffed, and do not receive proper training. 

The situation got so bad that in 2022 the ACLU of Maine sued the state in Robbins v. Maine Commission on Indigent Legal Services. Earlier this month, a Kennebec County Superior Court judge ordered that by April 3 defendants held for more than 14 days without being assigned a lawyer must be released from custody, and those who have not been assigned one after 60 days must have their cases dismissed. This situation is the direct result of the state failing to perform a job it is constitutionally required to do. This is a perfect demonstration of why well funded public defense systems are necessary for the health, integrity and efficiency of state legal systems, as well as for protecting the rights of the most vulnerable members of our society.

The right to effective assistance counsel is particularly precious because it enables the less fortunate to fight for all their other constitutional rights. The erosion of the right to counsel is not just a matter of individual rights; it represents a broader, systemic threat to the health of democracy itself.

The Dobbs decision overturning the reproductive rights found in Roe v. Wade was a sobering reminder that judicial precedent and the rights we have come to rely on should not be taken for granted. The right to counsel is spelled out clearly in the sixth amendment, “in all criminal prosecutions, the accused shall enjoy the right to [...] the Assistance of Counsel for his defence,” and yet the Supreme Court did not affirm this until nearly 173 years after the ratification of the Bill of Rights. Even after Gideon, low-income defendants have been and continue to be deprived of this basic structural right. The rights that we enjoy as Americans are more vulnerable than we often think. Lawyers are essential for the preservation of liberty and a robust public defense bar the only way to ensure equal justice for all. 

Maine officials have an opportunity to reverse the state’s low standing on public defense and to create a unique independently financed and operated public defense system. The Maine legislature should begin the work of creating an independent authority, separately run and financed through social impact bonds purchased by the public and conditioned on successful outcomes. Social impact programs have been employed in the United States since 2005 and have consistently demonstrated successful fiscal and public benefit outcomes. Through them we can reduce crime, save taxpayer expenditures, increase our tax revenues, decrease reliance on social service programs, strengthen individuals, families and communities, and end cycles of incarceration and the school to prison pipeline. 

Frank Zarro

Portland, Maine 

Originally published in the Portland Press Herald