Introducing 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 or prison, 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. And that’s it – pretty simple, right?

Well, unfortunately, this has become an increasingly complicated topic. 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 . . . all of this – has forced policymakers to continually look for ways to meet the absolute minimum demands of the Constitution but at the lowest cost possible:

  • If we have to provide lawyers to assist those we’ve accused of serious criminal offenses, what about those accused of minor ordinance or traffic violations . . . do we have to provide public lawyers then?
  • And when exactly do we have to make the lawyer available? Can’t we give the accused person the opportunity to get out of jail quickly by working out a deal with the prosecutor?
  • Or what if the judge has no intention of imposing a jail sentence in a specific case – do we have to provide the defendant with a lawyer then?

In order to clear up all of these issues, it’s helpful to go back to the beginning to understand why our nation’s founders established this right to counsel in the first place. It all begins with the struggle of “liberty” over “tyranny” that was central to the founding of our republic. And that’s where we pick up next.