Getting Real About Gideon: The Next Fifty Years of Enforcing the Right to Counsel

As we mark the fiftieth anniversary of Gideon, in this Article I argue that we can and should be more realistic in our efforts to enforce the right to counsel. Assuming, as many now do, that five decades of resource-starved indigent defense will likely continue in the future, where are our efforts most effectively deployed in the years to come? I address that question in three parts. Part II briefly acknowledges the entrenched crisis in indigent defense that is as old as the Gideon decision itself. Part III examines the most salient reform efforts of the last fifty years, highlighting those that have made a lasting impact on the provision of indigent defense services. Part IV suggests that some efforts of the last five decades need to be de-emphasized to make room for efforts that are achievable and imperative in the near term. In particular, I suggest that defenders need to seize upon this political and economic climate and pursue diversion and decriminalization; that systemic litigation should be rare and only a measure of last resort; and that the defense community needs to explore the role that nonlawyers can play in protecting the rights of criminal defendants