While the United States Supreme Court confirmed a defendant’s right to counsel in 1963 via Gideon v. Wainwright (372 U.S. 335), much work continues to level the playing field in actually ensuring proper representation for indigent defendants, says Jason D. Williamson, a leading national advocate on the issue.

Williamson, Executive Director of the Center on Race, Inequality and the Law since 2021, was the keynote speaker at the Nebraska State Bar Association’s annual conference Oct. 17-20 in LaVista.

“I’m deeply committed to the fight for equal access to the right to counsel for indigent defendants, a disproportionate number of whom are People of Color,” he said.

The Court agreed on the right to counsel, but it left to each state on how its courts handle the situation. Some states have dedicated public defenders offices, while others assign cases to private attorneys, said Jason Grams, President of the NSBA and a partner with Lamson, Dugan and Murray LLP in Omaha, in a separate interview.

Watching news stories coming out of New Orleans during Hurricane Katrina in 2005 pushed Williamson to become involved with public defense work. Shocked at what they saw, Williamson and his wife watched the destruction of New Orleans from flooding, with prisoners from Orleans Parish Prison – actually a jail – crowding together on a bridge, seeking help. Orleans Parish Prison has a history of substandard conditions and brutality by its staff, he explained.

“What unfolded during Hurricane Katrina was well-documented,” Williamson said. “They lost power, subjecting everyone to suffocating heat. Staff abandoned their posts, leaving those inside to fend for themselves. Food and water were nowhere to be found. And anyone in need of medical attention was left to suffer unattended.”

Williamson shared that having interned in the city a year earlier as part of a juvenile justice project, he saw the dark side of the justice system.

Prior to the hurricane, New Orleans didn’t have a public defender’s office, leaving representation to be handled by private attorneys, who signed contracts with the court system. Receiving about $30,000 a year to handle all cases assigned to them, lawyers worked them alongside their other private cases, which paid more and tended to take precedence over the court-appointed cases, he said. The system incentivized attorneys to settle cases as quickly as possible, thus, not providing indigent defendants a true defense.

Working with New Orleans city leaders, Williamson and a group of other lawyers developed a juvenile public defender’s office. He noted that while the office improved legal representation in the court system, attorneys started with a low bar.

Feeling stifled by structural barriers in the local court system, Williamson left the public defender’s office. He turned his attention to challenging a larger system of public defense across the country, and joined the American Civil Liberties Union’s Criminal Law Reform Project.

National organizations need to do more to provide adequate legal representation, Williamson said.

“Despite a fair mandate by the Supreme Court with Gideon, notwithstanding, we have an ongoing constitutional crisis playing out across the country,” he said. “We have failed to live up to our collective responsibility to ensure that all defendants are represented in a timely manner by competent and properly-resourced counsel.”

The standards established 50 years ago by the National Advisory Commission on Criminal Justice Standards and Goals weren’t realistic from the start, Williamson said. They called for attorneys to annually handle 150 felony cases, 400 misdemeanors, 200 mental health cases, 200 juvenile cases or 25 appeals. The goals were based on a single attorney handling only one type of case, such as 150 felonies or 400 misdemeanors. He continued to explain that using the 1973 goals, attorneys handling only 150 felonies a year averaged 13.9 hours per case, he said.

“Of course, most attorneys carry a caseload that includes cases in each of these categories,” Williamson said. “The larger problem with the standards was the fact that they were completely arbitrary. The committee did not engage in any kind of scientific or evidence-based process to determine what case management should look like.”

Earlier in 2023, the National Public Defense Workload Study, released through the Rand Corporation, establishes a new set of standards for public defenders, accounting for changes in criminal defense and the evolution of professional and ethical responsibilities.

The organization established categories for felonies and misdemeanors, as well as the number of cases an attorney should be assigned based on consultations with some of the best defense attorneys across the country:

Felony – High – Life Without Parole (LWOP): 7 assigned cases

Felony – High – Murder: 8 assigned cases

Felony – High – Sex: 12 assigned cases

Felony – High – Other: 21 assigned cases

Felony – Mid: 36 assigned cases

Felony – Low: 59 assigned cases

Driving Under the Influence (DUI) – High: 63 assigned cases

DUI – Low: 109 assigned cases

Misdemeanors – High: 93 assigned cases

Misdemeanors – Low: 150 assigned cases

Probation and Parole Violations: 154 assigned cases

“Based on the consensus of experts, the average time needed to represent an individual ranges from 286 hours to 13.5 hours, depending on the case,” Williamson said. “You’ll notice that the low end of this range, 13.5 hours, is equivalent to the number of hours required for even the most severe felony case under the NAC standards, which allows about 13.9 hours.”

In Douglas County, the public defender’s office has 55 attorneys and in 2022 handled more than 4,000 felonies, 10,000 misdemeanors, and more than 2,000 juvenile cases, as well as mental health cases and evictions. Across the state, indigent defendants can be represented by attorneys with the Nebraska Commission on Public Advocacy or local public defenders, as well as private attorneys assigned by a court.

Williamson’s organization continues to pursue legal settlements concerning right to counsel in states such as Idaho and Missouri. While changes across the United States are often only made through litigation, Williamson sees an improved future.

“I think it’s important that the federal government is paying attention in more than one of these cases,” he said. “And then there’s a new generation of public defenders around the country who are dedicated to providing client-centered representation, who are going to do whatever they need to do to protect their clients and fulfill this obligation that we fall short on at this point.”