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The Right to an Attorney: Theory vs. Practice

The head of the Sixth Amendment Center explains how to bridge the gap between what the Constitution guarantees and what people can actually get when it comes to public defenders.

December 20, 2021

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Like many other parts of the Bill of Rights, the Sixth Amendment seeks to expand individual rights at the expense of police and prosecutors. It was drafted to shape the contours of criminal trials in America. Criminal defendants, the text implies, are entitled to key procedural and substantive protections designed to give them a chance at a fair trial before an impartial tribunal when the weight of the government is pressed against them.

Case law has developed around each clause. There is lengthy Supreme Court precedent over “speedy trial” rights, for example, and also for change-of-venue motions. And there are countless judicial rulings over the “compulsory process” clause and the confrontation clause. Defendants (and defense attorneys) for centuries have tried to convince judges to expand the scope of the Sixth Amendment, and for just as long government lawyers have tried to limit its reach.

By far the most significant clause in the amendment focuses on the right to counsel. Without that foundational right, defendants in criminal cases who cannot afford their own attorney would find it difficult, or even impossible, to exercise all those other fair trial rights the amendment recognizes. Prosecutors and other government attorneys understand the centrality of the right to counsel. Unsurprisingly, then, most of the legal and political battles over the Sixth Amendment have focused on its final clause.

Most people understand on some basic level that they have a constitutional right to a lawyer if they are accused of a crime. This is due in large part to their familiarity with the “Miranda warning,” the litany of rights that arose from the Supreme Court’s landmark 1966 decision in Miranda v. Arizona. People are familiar with the warning — and what it means for their Sixth Amendment rights — not necessarily because they’ve ever been arrested or charged with a crime, but because they’ve heard it recited countless times in television and movies.

Few people realize, however, that their constitutional right to a lawyer is limited in a number of significant ways. When the Supreme Court first recognized a constitutional right to counsel in 1963 in its landmark ruling in Gideon v. Wainwright, the justices did not require states to provide any particular remedy or procedure to guarantee that indigent defendants could fully exercise that right. They left the details to the states and, predictably, some states took the guidance more seriously than others.

Many criminal defendants are accused of relatively minor crimes that don’t trigger a right to counsel. Other suspects are accused of serious crimes in jurisdictions that have such poor indigent defense systems that the legal representation afforded them is ineffective or even worthless due to underfunding and lack of support from legislators.

Enter David Carroll, the executive director of the Sixth Amendment Center, a nonprofit organization dedicated to preserving and expanding the right to counsel throughout the country. He and his team of other experts keep watch over developments in Sixth Amendment law and often are called by state legislators and other policymakers to help shape right-to-counsel statutes and regulations. Carroll’s decades as a researcher and an advocate gives him a unique perspective on where the law is and where it may be headed.

COHEN: Let me start with a broad question: The Sixth Amendment itself has a lot of clauses and purports to do a lot of things. When it comes to new court rulings or legislative action where’s the main action centered now in legislatures and courts? Speedy trials? The confrontation clause? The right to counsel?

CARROLL: Although each and every clause of the Sixth Amendment is critical to the due process of defendants, the right to counsel is paramount. As the Supreme Court declared in 1984, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.”

That is, a defendant cannot secure a speedy trial in front of an impartial jury, to confront witnesses, or to challenge the charges alleged against him, without the provision of a qualified and trained attorney, who has sufficient time and resources to provide effective representation under independent supervision, at all critical stages of cases.

COHEN: You say the right to counsel is “paramount.” Which way is the wind blowing on Sixth Amendment right-to-counsel cases? Are you seeing court decisions that narrow its scope or the opposite?

CARROLL: The Supreme Court continually clarifies the types of cases in which states must provide an attorney to indigent defendants, when the right to counsel must attach, what it means for an attorney to be deemed “effective,” and the necessary safeguards that public defense systems must have in place to prevent conflicts of interest. The Court’s clarification of what the right to counsel means has continued over the decades regardless of whether the Court is viewed as progressive or conservative.

The truth is, the United States has longstanding, deep-rooted, and broad deficiencies in the implementation of past Supreme Court Sixth Amendment cases. By that I mean that the Court declared that states must provide attorneys in misdemeanor cases in 1972, but America’s dirty little secret is that thousands of poor people are jailed and tried in misdemeanor courts without ever having the chance to speak to an attorney. For these people, the Sixth Amendment “right” to counsel is an illusion. We have a very long way to go to meet the current dictates of the Sixth Amendment, even in advance of any future clarifications by the Court about what the right to counsel actually means.

Could the Court say the right to counsel is required in bail hearings or at the police station after arrest? Or, could the Court one day say a person facing losing their kids in a termination of parental rights case requires a competent attorney? Or, could the Court say attorney compensation schemes that incentivize quick pleas are a form of governmental interference that prevents effective representation? Yes, I think those are issues the Court may eventually review.

COHEN: I think it might surprise some people to hear you say that the Supreme Court’s continuing failure to provide an adequate remedy to the constitutional right to counsel is a bipartisan effort. There is an ideological split on the Court, isn’t there, between progressive justices, who are generally more inclined to expand Sixth Amendment protections for indigent defendants and conservative justices, who are generally less inclined to do so? And if there is such a gulf, hasn’t it widened as the Court has gotten more conservative over the past three decades?

“The right to counsel is a core American principle that predates the establishment of American independence.”

CARROLL: There is a lot in your question to unpack. First, the failure to implement a meaningful right to counsel in this country is most readily the result of state legislatures not fully understanding Supreme Court’s Sixth Amendment decisions. The Court can only answer the questions it has been asked. No one thinks, for example, that the Court is finished defining all the critical stages of a case that require the appointment of counsel. When asked, the Court has pretty consistently clarified that due process requires that, for example, a competent attorney be appointed to people of insufficient means earlier and earlier in the life of a case. I am optimistic that will continue regardless of whether or not the Court is viewed as conservative or progressive at any one time.

That is because the right to counsel is a core American principle that predates the establishment of American independence. The first right to counsel statute was passed in Rhode Island in 1660. The gist of that law is that anyone can accuse anyone of anything “out of envy or malice.” The accused needs a lawyer to counter his accuser procedurally and substantively. In my travels, I have found that this basic demand for fairness is shared by the left and the right. There is nothing more tyrannical than “big government” taking the liberty of a poor person because the process is not fair. The problem is that most legislators — indeed most of the American public — think that the accused are provided effective lawyers and the Sixth Amendment jurisprudence is followed in our courts. Whenever the Sixth Amendment Center highlights systemic failures that prevent poor people from getting a lawyer at all — or a lawyer prevented from doing her job well — legislators do want to fix the system. And that is true whether the problems occur in red states, blue states, or purple states.

So, I think it is the Court’s place to establish the Sixth Amendment parameters of what states must do to create effective public defense systems under the Fourteenth Amendment and for the states to do so. Under Supreme Court case law, the Sixth Amendment right to counsel specifically requires that each and every adult who cannot afford to hire a lawyer at prevailing compensation rates in his jurisdiction must be given a qualified and trained lawyer. To trigger this right, the defendant must be facing a criminal prosecution that carries a possible prison term, whether immediate or suspended in lieu of court-imposed terms of probation. The court-appointed lawyer, meanwhile, must be able and willing to give sufficient time and resources to provide effective representation at all critical stages of cases. This includes, but is not limited to, plea negotiations, entry of a guilty plea, trial, and sentencing, unless at any point the defendant makes a knowing, voluntary and intelligent waiver of the right to counsel before a judge. That is good case law clarified by both progressives and conservatives on the Court. America’s indigent defense crisis is defined as state governments failing to properly implement all of that case law.

COHEN: You are unintentionally painting a rather rosy picture of the Supreme Court’s implementation of the right to counsel. Isn’t it true that the justices have consistently recognized Sixth Amendment rights without requiring state and local lawmakers to ensure that those rights may be remedied as a practical matter? To make the right-to-counsel a real one for the countless people who today get little or no representation at all, couldn’t the Supreme Court ensure that there is adequate funding and staffing for indigent defense work?

“There is no cookie-cutter model that will work in every jurisdiction.”

CARROLL: The implementation of the right to counsel in the 50 states is anything but “rosy”! Yes, it is true that the Supreme Court has not required states to implement all of its Sixth Amendment case law in a specific manner and at a specific funding level. There are two reasons for that.

First, there is no cookie-cutter model that will work in every jurisdiction. I know some advocacy groups state that a “government employed staff public defender office” model is the best, but I have seen far too many deficient public defender offices in my career to think the delivery model is the most important factor in effective representation. What works in, say, New York City, will not work in Mineral County, Nevada. What is important is that whatever public defense delivery model is employed meets national standards for independence, workload controls, supervision, attorney qualifications, early appointment of counsel, etc. In this way, the Supreme Court is recognizing that one must consider the facts on the ground in each jurisdiction when devising an indigent defense system — it’s Justice Louis Brandeis’s famous “laboratories of democracy.”

Second, the separations of powers between the three branches of government make courts reluctant to infringe on the legislative “power of the purse.” That is, it is a legislative power to say how taxpayers’ money should be spent. But that does not mean courts are without remedies to impact America’s indigent defense crises.

For example, in 2004, the Massachusetts Supreme Court considered a lawsuit establishing that chronic underfunding of the assigned counsel system resulted in an insufficient number of attorneys to represent indigent defendants. As is clearly within the province of the courts, the Massachusetts Supreme Court protected the right to counsel for indigent defendants and ensured a remedy for its denial. The Massachusetts court did not order the state to provide more funding for the Sixth Amendment right to counsel. Instead, the court ordered that the state must show cause why any defendant who had been arrested should not be released if no attorney was appointed within seven days of the arrest and also why criminal charges should not be dismissed against any indigent defendant who did not receive an attorney within 45 days.

In other words, the court gave the legislature a choice: you can properly fund the right to counsel or you can stop prosecuting people. Not coincidentally, the Massachusetts legislature did increase indigent defense funding as a result. I think with the right case, the U.S. Supreme Court could do something similar.

Having said all of that, I think what is really needed in this country is for Congress to establish an entity to promulgate, monitor, and enforce indigent defense standards at the state level. After all, the right to counsel is a constitutional right. Federal dollars could be made available to help states to meet such standards. Such an entity could reside in the Department of Justice, or better yet, housed under an independent commission that could also oversee the Federal Public Defender Services.

COHEN: Let’s end our chat with some more specifics. What Sixth Amendment cases are you tracking as they go through the courts? What state legislative efforts are you paying attention to as 2021 turns into 2022? Which legislatures are moving toward expanding the right to counsel and which legislatures are moving in the other direction?

CARROLL: I founded the Sixth Amendment Center based on three principles: our board and funding are nonpartisan, we only go where we are invited, and we do not get involved in litigation. Adhering to those principles helps us engender trust from all ends of the political spectrum so that policymakers do not have to fear that asking us to help identify systemic public defense problems will lead to protracted litigation.

That’s a long way of saying that the Sixth Amendment Center focuses on state-level, legislative work. We certainly have an interest in federal cases that will eventually impact Sixth Amendment case law, but we are more dispassionate observers as potential cases wind their way through the federal courts. If the Supreme Court sets new Sixth Amendment parameters that states must follow, we will adjust our evaluation methodology accordingly. We do however track state-level cases because of the more immediate impact they can have on state indigent defense reform efforts.

A number of states are working on reforms right now, and we expect those reforms to continue and expand next year. California recently empowered a state agency to distribute, for the first time, state funds to counties to help improve local indigent defense services. The 2022 legislative session in Mississippi will consider some initial structures to ensure a more meaningful right to counsel at the local level. The Sixth Amendment Center released a report in 2021 showing that Illinois state has neglected its Fourteenth Amendment obligations to ensure effective Sixth Amendment services. I fully expect the Illinois legislature to begin debate in 2022 on how to best remedy the situation.

Perhaps most excitingly, we anticipate that the Pennsylvania legislature will create a task force or empower the Pennsylvania Commission on Crime and Delinquency to begin debate on how best to bring more state oversight and resources to the problematic county-based indigent defense services there. Pennsylvania and South Dakota are the only states that, for the most part, still do not provide any state money to ensure the constitutional right to counsel. On November 10, 2021, the Pennsylvania Legislative Budget & Finance Committee publicly released a report that shows that collectively Pennsylvania’s 67 counties expended only $7.63 per capita on public defense in 2019. The last time the Sixth Amendment Center attempted to collect expenditure information from all 50 states was in 2016, and the national average for state-level indigent defense cost-per-capita was $17.83. That is a glaring red flag!

The interview has been edited for length and clarity.