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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
A suited woman writes on a notepad, near a gavel and scale

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.