By Maha Jweied, Senior Counsel, U.S. Department of Justice – Access to Justice Initiative
2013 marked the 50th anniversary of the landmark right to counsel case, Gideon v. Wainwright, which held that defendants facing serious criminal charges have a constitutional right to counsel at state expense if they cannot afford one. Since that decision, the Supreme Court extended the right to juveniles and expanded it to incorporate misdemeanor offenses that are punishable by incarceration. But the promise of Gideon remains unfulfilled. The availability and quality of criminal defense services varies widely across states and localities. Many defenders struggle under excessive caseloads and lack adequate funding and independence, making it impossible for them to meet their legal and ethical obligations to represent their clients effectively. Efforts to strengthen and protect the right to counsel – which is guaranteed under the U.S. Constitution and international human rights law – continue.
In 2012, the United Nations General Assembly adopted the first international document specifically on the criminal right to counsel. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems is the result of a multi-year effort by the United Nations, nongovernmental organizations, and member states. And it affirms that indigent defense “is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.”
I had the honor of participating in this process as a member of the U.S. Delegation to the UN Crime Commission, where the document started on its path to adoption by the UN General Assembly. Throughout, the U.S. Government strongly supported the adoption of Principles and Guidelines and in public statements in support of the document and the international effort to strengthen indigent defense, the United States acknowledged that:
“Ensuring that indigent children and adults have access to effective assistance of counsel is … one of the cornerstones of the U.S. criminal justice system.”
This right extends to youth and adults experiencing homelessness and is especially critical when their simple acts of living – sleeping, eating, and sitting in public places – are criminalized by localities that are frustrated with the realities of homelessness.
The criminalization of homelessness is a response to minimize the visibility of the problem. Borne out of a desire to improve safety, attractiveness, and livability of cities, communities have turned to the criminal justice system as a response to the problem. But some of these laws have been found to violate the human rights of people experiencing homelessness. For example:
- Restrictions on begging have been found to violate the First Amendment right of expression or speech.
- Forced removals from homeless encampments and confiscation of belongings have been found to violate due process and the Fourth Amendment right to be free from unreasonable search and seizure.
- Criminal penalties for engaging in necessary life activities in public spaces, when no other option exists, have been found to violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
Moreover, these laws may also run afoul of international human rights law, such as the International Covenant on Civil and Political Rights and the Convention Against Torture.
Until such ordinances are replaced with responses that help prevent rather than punish homelessness, individuals charged under laws that carry a potential sentence of imprisonment must be provided with their right to free, appointed counsel to protect their human rights.