Gideon Alert: Georgia governor considers shifting state's right to counsel obligations back to county governments

BY David Carroll on Wednesday, April 7, 2010 at 10:16 AM

The Atlanta-Journal-Constitution reports that the Governor and key legislators are seriously considering shifting the financial burden of funding the right to counsel back to Georgia’s counties.  Despite stating in 2003 that the state was not meeting its “moral obligation of providing criminal defendants with adequate legal counsel,” in signing into law a new statewide public defender system, the Governor now is considering returning to the outdated system because, “[t]he economic situation we’re in is something nobody could have predicted.”

With escalating rhetoric of  "crusaders who have all the purist ideological zest of an ivory-tower professor” trying to “severely knee-capped” the system without  “an understanding of practical realities required to actually manage a system with scarce resources," by advocating and litigating systemic deficiencies, it is time to review states obligations to ensure that Gideon’s mandate is met.  In 2008, national advocacy groups submitted an academic white paper on this very subject to the Nevada Supreme Court:

“The Sixth Amendment provides, ‘In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."  In Gideon v. Wainwright, 372 U.S. 335, 344 (1963), the United States Supreme Court stated that “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.’  The Court then held that the Sixth Amendment applied to the states - not to county or local governments - by virtue of the Fourteenth Amendment and that the State of Florida thus had an obligation to provide Mr. Gideon with counsel for his defense.  National standards incorporate this aspect of the decision, emphasizing that state funding and oversight are required to ensure uniform quality.’ [See the American Bar Association, Ten Principles of a Public Defense Delivery System, Principle 2:  “Since the responsibility to provide defense services rests with the state, there should be state funding and a statewide structure responsible for ensuring uniform quality statewide”. See also: Guidelines for Legal Defense Systems in the United States (National Study Commission on Defense Services, U.S. Department of Justice, 1976), Guideline 2.4.]

“Delegation of indigent defense function to the counties, however, does not end the state’s obligations.  While a state may delegate obligations imposed by the constitution, ‘it must do so in a manner that does not abdicate the constitutional duty it owes to the people.’  Claremont School Dist. v. Governor, 147 NH 499, 513 (2002).  In other words, the state has an obligation to ensure that the counties are capable of meeting the obligations and that counties actually do so.  Cf Robertson v. Jackson, 972 F.2d 529 (4th Cir. 1992) (holding that although administration of a food stamp program was turned over to local authorities, ‘ultimate responsibility . . . remains at the state level.’); Omunson v. State, 17 P.3d 236 (Idaho 2000) (holding that where a duty has been delegated to a local agency, the state maintains ‘ultimate responsibility’ and must step in if the local agency cannot provide the necessary services). 

If the counties cannot meet the delegated obligations, the state — as the original obligor — must step in.  The state cannot be permitted to abdicate all responsibility to the counties; if a violation of constitutional rights of citizens’ rights results, the state remains liable.  It is for this reason that, despite statutory delegation of the right to counsel obligations to counties, courts in both Montana and Michigan have held that the state is an appropriate defendant in class actions alleging systemic right to counsel violations.  Duncan v. State of Michigan, No. 07-242 CZ, Transcript of Hearing on Motion to Dismiss, at 35 (May 15, 2007) (‘While it’s true the defendants have delegated the responsibility for funding and administering the indigent defense programs to the counties, it does not mean that defendants are off the hook.’); White v. Martz, No. CDV-2002-133 Memorandum and Order (Mont. Dist. Ct. July 24, 2002).”