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Expanding the US Right to Counsel
Co-Editor Lauren Bartlett discusses the growing US movement to expand the right to counsel beyond felony cases and limited civil areas. The movement, often referred to as Civil Gideon demands expansion of the legal counsel in compliance with the International Covenent on Civil and Political Rights. In part the Covenant demands that "all persons shall be equal before the courts and tribunals." (Art. 14) The right to civil counsel is a growing movement of advocacy and literature that recognizes the need for counsel in order to meaningfully secure basic human needs.
Expanding the Right to Counsel in the U.S.
Last year, institutions across the U.S. celebrated the fiftieth anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963) with events, reports, and more. After the excitement over the anniversary of this groundbreaking right to counsel decision died down, what became clear, as it has after past anniversaries, is that there remains a right to counsel crisis in the U.S. The right to counsel is not being fulfilled for many low-income people, not only in the criminal justice system, but also in civil cases and immigration proceedings in the U.S. Today, public defenders offices across the U.S. cannot keep up with demand and individuals are not getting the defense they need, which exacerbates our mass incarceration problem. Although the right to counsel for juveniles charged with serious crimes was established soon after Gideon, many youth are not able to exercise the right or are pressured to waive the right. At other times counsel is appointed so late in the process that the right becomesmeaningless.
Tens of thousands of immigrant children may face deportation proceedings in the coming year, there is no right to counsel for immigrants in detention (but see Franco-Gonzales v. Holder). Moreover, there has been a growing movement towards a civil right to counsel, or Civil Gideon, with growing evidence that providing counsel to low-income families in civil cases, such as housing and child custody cases, provides extraordinarily better outcomes for the low-income individuals involved and saves courts a good deal of time, frustration, and money. Many possible solutions to this crisis have been proposed, and a couple of local jurisdictions have taken it upon themselves to try out new ideas. Yet, individually and structurally, barriers to the right to counsel crisis persist.
In an effort to charge the conversation and use international pressure to push the movement forward, U.S. advocates have begun using the human rights framework to advocate for the expansion of the right to counsel in both the misdemeanor criminal and civil contexts. Human rights law provides for more expansive protections for access to justice. For example, human rights law has been cited as requiring the right to counsel to apply for certain cases for civil litigants, individuals detained at police stations, and immigrants in detention. Although much of human rights law is not directly enforceable in U.S. courts, advocates can make policy and comparative law arguments using human rights that can be quite persuasive to some judges and policymakers.
As Risa Kaufman mentioned in her post earlier this week, this is the year of U.S. human rights reviews at the U.N. and access to justice is key to the discussion. Here at home, U.S. advocates have the chance to directly engage with the U.S. government on how access to justice can help promote the implementation of United States human rights obligations and commitments. On April 1, 2014, the Local Human Rights Lawyering Project at the Center for Human Right and Humanitarian Law at American University Washington College of Law will host a Civil Society Consultation with the U.S. Government on Access to Justice. This is the first-ever consultation with the U.S. government focusing on access to justice in the human rights context. The consultation will allow U.S. advocates, as well as persons directly affected, to directly address U.S. government officials both regarding the upcoming Universal Periodic Review and the review by the Committee on the Elimination of All Forms of Racial Discrimination. By the time the sixtieth anniversary of Gideon rolls around, we hope to move leaps and bounds closer to fulfilling our human right of access to justice for all. This consultation provides a unique platform to launch us towards that goal. Please join us in D.C., or at least tune into the live webcast of the consultation. All are welcome.
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