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ACLU: Our right to a lawyer
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Any adult Utahn who watched any television growing up probably knows these words by heart: "You have the right to an attorney. If you cannot afford an attorney, one will be provided for you."

While most people know that this recitation of rights to criminal suspects comes from the United States Supreme Court case of Miranda, fewer people know that the guarantee of counsel to indigent defendants comes from the court's 1963 decision in Gideon v. Wainwright. And fewer people still know that Gideon relied on Powell v. Alabama, a 1932 case authored by Justice George Sutherland, the only Utahn to sit on the Supreme Court.

In Gideon, the court recognized that the Sixth Amendment's right to counsel was meant to ensure fundamental fairness in criminal proceedings. If an accused cannot pay for a lawyer, the court reasoned, fairness and the Constitution demand that the state government provide one.

Later Supreme Court cases held that state-provided attorneys must be effective, since ineffective counsel is the same as no counsel. Thus, the promise of Gideon, decided 50 years ago this Monday, is that everyone accused of a crime will be well represented, even if he or she is poor.

The need for effective, publicly funded criminal defense in Utah is acute. Last year, state district courts disposed of more than 37,000 criminal cases, justice courts took care of about 83,000 misdemeanors and infractions and juvenile courts disposed of about 34,500 criminal-type cases.

Nationally, an estimated 80 percent to 90 percent of people charged with crimes qualify for a state-funded attorney. Every day, then, hundreds of Utahns of limited means — men, women and children — face criminal accusations. And let's face it, being convicted of a crime is no small matter; even a minor conviction can lead to inability to find work or housing, loss of scholarship opportunities, and various other lifelong consequences.

For several years now we have been ringing the alarm bell that Utah is failing to fulfill Gideon's promise to its people. Utah is one of only two states where there is no direct state funding, oversight or other assistance for public defense. Instead, Utah places an unfunded mandate on counties to provide indigent defense. We thus have a patchwork of 29 different methods of providing defense, with varying funding and operational standards.

In 2011, the ACLU of Utah released "Failing Gideon," a report in which we surveyed several county indigent defense systems and found that none of them complied with national standards. Our report also pointed out that Utah ranks 48th nationally in per-capita funding of indigent defense.

These findings are troubling not just for Utahns who need a defense attorney, but for our justice system as a whole. There are few threats more serious to the rule of law than people losing faith that criminal proceedings are anything except fair.

Though improving Utah's public defense system will be a challenge, we must do so. Some steps are already underway.

The Utah Judicial Council has convened a trial-level indigent defense task force to evaluate our system and make recommendations for improvement. Counties are exploring ways to improve their public defense contracts to meet best practices. The ACLU of Utah, too, is constantly seeking ways to move reform forward.

We invite you, our fellow Utahns, to be a part of improving the system in whatever way your abilities allow. The Constitution's promise of fairness to everyone, after all, is a promise we have all made to each other.

Karen McCreary is executive director of ACLU of Utah; John Mejia is its legal director.

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