Federal Gideon "Explained"

By Michael Caruso

Because David’s readers are the most informed in the district, you know that this year marks the 60th anniversary of the Supreme Court’s decision in Gideon v. Wainwright. “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the Court found, and “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

But people accused in federal court obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, and Gideon was a decision about incorporating the right and applying it to the states. Notwithstanding, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), appointed attorneys were not paid to represent indigent federal defendants. Nor was there any funding for case-related expenses, much less investigators or experts. Gideon, along with the highly influential report of Professor Francis Allen (years later my 1st year Crim Law professor) to then-Attorney General Robert F. Kennedy (the Allen Report), was a significant reason for passage of the CJA and the creation of a funded federal defense system.

The Report’s words still ring true: 

When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice. The essence of the adversary system is challenge. Survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. 

The Allen Report proposed legislation that became the template for the landmark (CJA). The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon.

The CJA was not fully completed, however, until 1970. The original statute did not create federal public defender offices but relied solely on assigned private attorneys paid by the hour. The Department of Justice and the Judicial Conference convened another study in 1967, and the subsequent findings contained in the Oaks Report recommended Congress amend the CJA to include public defender offices. The bill passed, and aside from occasional minor amendments, the current structure of federal public defense has remained the same ever since.