The Right to Counsel

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The right to counsel under the U.S. Constitution is actually a fairly simple concept. If you are charged with a crime for which you face potential time in jail, then you have the constitutional right to have a lawyer to assist you in your defense. And if you can’t afford to hire that lawyer on your own, then the government must provide you with a qualified attorney at public expense.

Here’s why: without the aid of an effective lawyer almost anyone stands the risk of going to jail when charged with a crime. Most people do not know, for example, what is and is not admissible in a court of law, let alone how to procedurally convince twelve jurors that they are innocent. If this is true of even the most affluent and educated among us, is it then fair to let someone who has fallen on hard times, or has been let down by our country’s educational system, or is not yet an adult, face a loss of liberty at the hands of government simply because they lack the guiding hand of counsel to navigate the complexities of our legal system? In 1963, the United States Supreme Court answered with a definitive “no.”

In Gideon v. Wainwright, the Court said, “reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.” In the intervening 50+ years, the Supreme Court has consistently extended the promise of Gideon to any criminal case in which a defendant may potentially lose their liberty, including: direct appeals, juvenile delinquency proceedings, misdemeanors, misdemeanors with suspended sentences, and appeals challenging a sentence as a result of a guilty plea.

But what seems “obvious” to jurists within the hallowed halls of the Supreme Court may not be so clear to others, and some jurisdictions nationwide have mistakenly assumed that, so long as every defendant is provided with someone with a bar card to stand next to them, then the Sixth Amendment right to counsel is satisfied. That is not true. Through a long series of cases, the Court has said the right to counsel is the right to an effective attorney. Lawyers cannot be effective unless they work within indigent defense systems that ensure their independence, provide training, and impart supervision, among other systematic safeguards.

Unfortunately, in the over half-century since the U.S. Supreme Court affirmed that the right to counsel is an obligation of state governments, carrying out this simple concept has become more and more complicated. The difficult realities of local governance – providing critical social services like roads, hospitals, and schools, while keeping our communities safe, all with limited tax dollars available – cause policymakers to continually look for ways to meet the absolute minimum demands of the Constitution while doing so at the lowest cost possible. Even in their best efforts, many jurisdictions struggle to fulfill the Sixth Amendment guarantee for each defendant in every criminal case.

The Sixth Amendment Center believes that only by truly understanding the problem can policymakers at the federal, state, and local levels finally reach a comprehensive solution. To start, we visit the Sixth Amendment to examine exactly what governments are obligated to provide under the Constitution.