According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.
The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.
It remains that it is always easier to give away someone else's privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance—for them, the potentially ubiquitous video recording devices will be aimed at someone else.
That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private—like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?
It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor's concurring opinion in the GPS case from last year, United States v. Jones—it's far from clear that a major doctrinal shift is coming.
What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.
Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it's worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.
Lawrence Friedman
May 11, 2013
March 27, 2013
Reflecting on Gideon at 50
This month marks the 50th anniversary of Gideon v Wainwright, the Supreme Court’s celebrated decision establishing the constitutional right to counsel for indigent criminal defendants. The occasion provides much to commemorate, but also reminds us how far there is to go. Indeed, it has become commonplace to note that “Gideon’s Trumpet” (the title to the wonderful book by Anthony Lewis, who just passed way) has been “muted” by widespread violations of the right to counsel. Blame rests primarily with persistent underfunding of the defense function and the excessive caseloads that result. An assembly line of routinized pleas, in which lawyers engage in little or no advocacy on behalf of their clients, too often is the norm in courthouses across the country.
The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:
"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."
Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwise—whose capacity to render adequate representation is severely limited. As Stephen Bright, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at all—is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by Gideon and its progeny.
Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.
Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert).
Time will tell whether these and other efforts can change the narrative about Gideon’s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon’s promise a reality.
Tigran Eldred
The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:
"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."
Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwise—whose capacity to render adequate representation is severely limited. As Stephen Bright, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at all—is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by Gideon and its progeny.
Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.
Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert).
Time will tell whether these and other efforts can change the narrative about Gideon’s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon’s promise a reality.
Tigran Eldred
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