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Column: Lack of legal representation remains a concern

Joanne Pohl retired this month as Goodhue County Court Services director. This is her final column as a county department head.

Last year marked the 50th anniversary of a landmark Supreme Court case Gideon vs. Wainwright. That case involved an impoverished Florida man who was charged with breaking and entering, a felony under the laws of Florida.

Clarence Gideon appeared in a Florida state court in March of 1962 and asked the judge to appoint an attorney to assist him in his defense. Under the laws of Florida, a person was not entitled to a court-appointed attorney unless charged with an offense punishable by the death penalty.

The Sixth Amendment to the U.S. Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." However, the Supreme Court declined to rule that the 14th Amendment (the due process clause) required states to provide court-appointed attorneys in criminal cases in state prosecutions. In other words, the constitutional right to counsel in criminal cases did not extend to state prosecutions when Gideon appeared before the Florida judge in 1962.

Gideon asked the U.S. Supreme Court to rule that the U.S. Constitutional right to counsel in criminal offenses applied to defendants in state prosecutions. In analyzing Gideon's request for counsel, the U.S. Supreme Court examined whether the right to counsel contained within the Sixth Amendment constituted a "fundamental principle of liberty and justice which lies at the base of all our civil and political institutions." In March 1963, the Supreme Court issued its decision holding that "a provision of the Bill of Rights which is fundamental and essential to a fair trial is made obligatory upon the State by the Fourteenth Amendment."

Today, states struggle with funding issues attendant to the requirement for court-appointed counsel for indigent defendants in the criminal justice system. Nevertheless, Minnesota continues to work to ensure that the aspirational standards of effective assistance of counsel for indigent criminal defendants established by the Gideon case are operationalized across our state court system.

Consider civil counsel implications

Now 50 years after Gideon vs. Wainwright, judges and legal scholars are examining the constitutional right to counsel outside the confines of criminal justice. State courts are considering whether the right-to-counsel guarantee in criminal cases should be expanded to include right-to-counsel in civil litigation when fundamental and essential rights of citizens are being threatened.

Examples of civil litigation that clearly impact a citizen's basic and fundamental rights include parental rights terminations, adoptions, guardianships, civil commitments and incarceration for nonpayment of child support.

Minnesota currently has laws that provide for mandatory appointment of counsel in these types of civil litigation and provides for discretionary appointment of counsel by judges in additional types of civil cases. Minnesota lawmakers have recognized that providing a right to counsel in critical cases involving vulnerable citizens not only promotes a better decision-making process for judges, but advances the American ideal of justice for all.

Advocates for expanded right to counsel initiatives have focused on civil law areas such as housing, domestic violence and access to health care as particularly crucial for citizens unable to afford legal representation. The National Coalition for a Civil Right to Counsel reports that a recent comprehensive meta-study concluded that "litigants with lawyers were anywhere from eight to over 200 times more likely to prevail in their civil case than those without counsel."

The National Conference of Chief Justices has endorsed the idea of civil right-to-counsel programs for people facing "critical civil issues." There is a growing consensus that providing counsel in these types of civil litigation where the stakes are high (loss of housing, loss of custodial rights, personal protection from abusers, etc.) results in more reasoned and balanced outcomes.

Minnesota pilot project

Various economic research and studies demonstrate cities/states may actually save money in shelter costs, emergency room health care costs, foster care costs and homelessness costs when persons who cannot afford legal representation are provided public attorneys. (Economic Benefits of Civil Legal Aid, National Center for Access to Justice, Cardozo Law School)

A 2018 pilot project in Hennepin County involving Mid-Minnesota Legal Aid and Volunteer Lawyers Network examined eviction cases filed in Hennepin County between Jan. 1 and June 30, 2018, "to determine the effect of legal representation for tenants on housing stability." The study found that fully represented tenants are four times less likely to use homeless shelters. This is because unrepresented tenants "are between four and five times more likely than fully represented tenants to face the worst possible outcome of an eviction case: the abrupt, forced departure from their homes by sheriff's deputies."

The concept of a civil right to counsel is not a new idea within international circles. In fact, the World Justice Project's 2016 Rule of Law Index ranks the U.S. tied for 94th out of 113 countries on "accessibility and affordability of civil justice." The report cites the growing gap between the rich and poor in America in terms of "both actual use and satisfaction with the court system."

The 50th anniversary of the Gideon v. Wainwright decision requiring that states respect and protect their citizens' constitutional protections against invasions of their lives and liberties should encourage all Americans to consider the jeopardy posed by a justice system that fails to ensure "justice for all." Further study, privately funded pilot projects, and citizen debate will shape future legislative action and judicial decision-making on this important topic.

To learn more about civil right-to-counsel initiatives, visit www.civilrighttocounsel.org.

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