23 Pages Posted: 28 May 2013
Date Written: 2013
This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for the middle class, let alone the poor.
Longer-term solutions need to move in the opposite direction. Rather than expanding Gideon’s ambitions and appetite to civil cases, we must shrink the universe of cases covered by Gideon to preserve its core. That would mean excluding nonjury misdemeanors and perhaps probationary sentences from its ambit, and thinking harder up front about which cases need to be charged and pursued as felonies. Civil procedure could learn from inquisitorial systems, in which judicial officers are more active in leading investigation and discovery and the parties’ lawyers need do less. There may also be ways to loosen the bar’s stranglehold so that paralegals, social workers, and others can automate delivery of legal services for routine cases, just as physician assistants and nurse practitioners are now providing care in routine medical cases.
In short, Gideon can work in the real world only if lawyers drop their grandest ambitions for lawyerizing the whole world and instead step back to make lawyers less necessary in the first place. The goal should be to concentrate lawyers’ efforts on providing quality legal services in the highest-stakes cases where they are needed most. Quality and support matter more than quantity alone.
Keywords: Gideon v. Wainwright, Sixth Amendment, constitutional law, criminal procedure, right to counsel, cost and delivery of legal services, legal profession, legal aid, alternative dispute resolution, appointed counsel, sustainable court reform, pro se litigation, resource constraints, Turner v. Rogers
Suggested Citation: Suggested Citation
Bibas, Stephanos, Shrinking Gideon and Expanding Alternatives to Lawyers (2013). Washington and Lee Law Review, Vol. 70, p. 1287, 2013; U of Penn Law School, Public Law Research Paper No. 13-13. Available at SSRN: https://ssrn.com/abstract=2271136