Bringing Water to the Desert (on a Horse With No Name)
By Judge Debra Sasser
Imagine you are standing in front of a judge wearing a jumpsuit issued by the local county jail. You are standing alone, even though the judge told you at your first appearance that she was appointing an attorney to represent you.
Imagine hearing the judge now tell you that no one has been assigned to represent you, and that she doesn’t know when an attorney will be assigned.
Then imagine returning to your jail cell with no assurance that an attorney will be available on your next court date.
This is a reality for some criminal defendants in North Carolina.
Legal Deserts
In 2020, the American Bar Association Profile of the Legal Profession 2020 (July 2020) reported that
“[L]arge swaths of the United States have few lawyers or no lawyers. There are more than 3,100 counties and county equivalents in the U.S., and 54 of them have no lawyers. Another 182 have only one or two lawyers. Many are parts of legal deserts — large areas where residents have to travel far to find a lawyer for routine matters like drawing up a will, handling a divorce, or disputing a traffic violation.”
The North Carolina State Bar has been studying this crisis since June 2022. As of December 2023, more than 45 of North Carolina’s 100 counties were legal deserts, meaning there was less than one attorney per 1000 residents. Brian Oten and Savannah Perry, “A Larger Conversation on Legal Deserts,” North Carolina IOLTA, (Dec. 1, 2023).
The Court’s Constitutional Challenge
Both the Constitution of the United States and the North Carolina State Constitution guarantee the rights of criminal defendants, including the right to a lawyer. U.S. Const. amend. VI; N.C. Const. art. I, § 23
In 1963, Gideon v. Wainwright established that the right to legal counsel is a fundamental protection guaranteed by the U.S. Constitution. Legal representation is essential for a fair trial, regardless of an individual’s financial situation. Gideon v. Wainwright, 372 U.S. 335 (1963). This decision brought to life the Sixth Amendment’s promise of justice for all and is a critical element in achieving equal access to justice.
Suffice it to say that in legal deserts, where there are not enough attorneys to handle a community’s routine legal matters, there certainly are not enough lawyers on the court-appointed list (or employed by local Public Defender Offices) to meet the needs of each indigent defendant charged with a crime.
This crisis is sometimes referred to as a “constitutional crisis,” but use of this term is just a shorthand way of referring to the challenge facing our judges to timely provide court-appointed counsel to every eligible defendant.
A Judicial Quandary
Understanding that the State has an obligation to provide court-appointed counsel is one thing. Meeting this obligation (providing a court-appointed attorney to every indigent criminal defendant across the State), well, that’s a horse of a different color (and one with no name).
Not surprisingly, neither the U.S. Constitution nor the N.C. Constitution suggest how to manifest attorneys out of thin air to serve as court-appointed attorneys for each qualifying defendant. But the responsibility weighs heavily on the presiding judge, as it should. The judge is the ultimate protector and guarantor of a defendant’s right to counsel.
Judge Vince Rozier, Resident Superior Court Judge in the Tenth Judicial District, and Judge Beth Tanner, District Court Judge in the Twenty-Ninth Judicial District, have been working with the Chief Justice’s Committee on Professionalism to address this issue.
But what is a judge to do? The short answer is to be clever, be resourceful, and think creatively — exactly what Judge Rozier and Judge Tanner are doing. The video below is the first in a six-part series in which these judges discuss what they have seen across the State and procedures they have implemented to help stretch scant attorney resources to fulfil this fundamental promise.
Judge Debra S. Sasser served as a District Court Judge in the Tenth Judicial District (Wake County) from 2004 until her retirement from the bench on January 1, 2025. During her years on the bench, Judge Sasser served as the Chief District Court Judge, Lead Judge in Civil Court, and Lead Judge in Domestic Court. Judge Sasser’s first career was in information technology where she spent nine years designing, developing, and implementing business systems for a large energy company. She received her law degree from the UNC School of Law in 1992. Before her election to the bench, Judge Sasser was a litigation associate with Kennedy Covington Lobdell & Hickman, LLP, and Tharrington Smith, LLP. Prior to taking the bench, Judge Sasser also served as legal counsel for the North Carolina Guardian ad Litem Program and was a mediator and arbitrator in private practice. She has been a member of the NCBA Professionalism Committee since 2019.