Right to counsel

Description: The opportunity for defendants in federal criminal proceedings to be represented by lawyers.

Relevant amendment: Sixth

Significance: The right to legal counsel gives people accused of crimes access to expert help in defending themselves in the complex arena of a criminal trial. In 1963, the United States (US) Supreme Court interpreted the Fourteenth Amendment as extending this element of due process to defendants in state trials.

Although the Sixth Amendment of the US Constitution appeared to contain the right to legal counsel, the exact meaning of that provision was unclear until interpreted by Congress and the Supreme Court. In 1790, while the Sixth Amendment was still being ratified, Congress passed the Federal Crimes Act, requiring defendants in federal capital cases to be provided with legal representation. The Court extended this same protection to all federal criminal cases, regardless of whether they involved the death penalty, in Johnson v. Zerbst (1938).

Special Circumstances Doctrine

Although some states required the appointment of lawyers even before the Sixth Amendment was ratified, no national code of due process obligated the states to provide legal help for people accused of crimes. It was not until 1932 that the Court imposed even a limited requirement on state courts to provide legal counsel, and as late as 1963, some states still refused to pay for lawyers for defendants with a lower socioeconomic status.

In Powell v. Alabama (1932), the first Scottsboro case, the Court, by a 7-2 majority, overturned Alabama’s convictions of nine Black American youths for raping two White women. The young men had been given a pro forma trial and sentenced to death. Although they had received court-appointed lawyers, the attorneys provided a weak defense. The trial judge behaved in an overtly biased fashion toward the defendants, and the young men's lawyers never presented evidence that might have cast doubt on Alabama’s case. In his majority opinion, Justice George Sutherland did not extend the right to counsel to all state criminal cases, but he did establish the “special circumstances” doctrine. The Court ruled that in state capital cases where there were special circumstances, such as the defendant's illiteracy, state trial judges were obligated to appoint competent lawyers to represent the accused. For over thirty years, the special circumstances doctrine was the law of the land, requiring state courts to appoint legal counsel in only the most obvious and serious situations of the defendant’s need.

A Reconsideration

Although the Court had the opportunity to apply the right to counsel to all state criminal cases in Betts v. Brady (1942), it declined to do so, sticking to the case-by-case scheme it had prescribed in the Powell case. It was not until the 1963 case of Gideon v. Wainwright that the Court finally retired the special circumstances doctrine. Clarence Gideon was a drifter with a history of committing petty crimes. He was accused of breaking into a pool hall and stealing some money and liquor. Although Gideon asked the trial judge to appoint him a lawyer, the judge, relying on Betts, refused to do so. After a failed attempt at defending himself, Gideon was sentenced to a long term in prison. Gideon appealed his conviction on Sixth and Fourteenth Amendment grounds to the Supreme Court.

The Court had been looking for an appropriate case to overrule what most of them considered a flawed decision in Betts v. Brady. To reverse Betts, the Court needed a case in which an intelligent person, denied a lawyer, had been unable to successfully defend himself. Because Gideon was intelligent, there could be no question that the trial judge might have improperly denied him special circumstances status. Likewise, because Gideon was White, there could be no question of possible racial discrimination to muddy the waters. The charges against Gideon were not complicated. Gideon was an intelligent man with a sympathetic, even helpful trial judge who failed miserably to defend himself against noncomplex charges. This made Gideon the perfect case to overrule the special circumstances doctrine. On March 18, 1963, a unanimous Supreme Court, speaking through Justice Hugo L. Black, applied the right to counsel to all state criminal proceedings.

In Argersinger v. Hamlin (1972) and Scott v. Illinois (1979), the Court extended the right to counsel to misdemeanor trials that resulted in jail sentences but not to those that resulted in fines or lesser punishment.

The Pretrial Period

Gideon left many important questions unanswered, including at what point in the criminal investigation a suspect who requested a lawyer had to be provided with one. In Escobedo v. Illinois (1964), the Court ruled that a suspect asking for counsel during a police interrogation had to be granted representation.

In Miranda v. Arizona (1966), the Court went a step further, requiring the police to advise suspects of their right to a lawyer even if they did not ask to speak with an attorney. According to the Court, a person suspected of committing a crime should be provided with a lawyer when the individual ceases being one of several possible suspects and becomes the principal focus of the criminal investigation. The decisions in these two cases showed that, in the Court’s collective mind, the Sixth Amendment right to counsel was firmly connected to the Fifth Amendment’s protection from compulsory self-incrimination.

Still, in the twenty-first century, challenges and differing interpretations of laws surrounding the right to counsel remain. In 2023, Garcia v. Hepp looked into issues of when the right to counsel should come into effect during an investigation and ruled that once a commitment to prosecute was made, the individual was required to be offered legal counsel. In 2024, Robbins v. Maine Commission on Indigent Legal Services was a class-action lawsuit that addressed what the American Civil Liberties Union of Maine saw as the failure of the state to provide adequate legal representation to individuals of lower socioeconomic status. Also in 2024, Davis v. Colorado was a case in which a defendant questioned whether his Sixth Amendment rights were violated when his public defender was changed at the last minute. Although Colorado ruled the defendant's rights had not been violated because those using public defenders did not have the same rights as those with access to a private attorney, the decision was being appealed. 

Bibliography

Cohen, Andrew. "How Americans Lost the Right to Counsel, 50 Years After Gideon." Atlantic, 13 Mar. 2013. www.theatlantic.com/national/archive/2013/03/how-americans-lost-the-right-to-counsel-50-years-after-gideon/273433. Accessed on 28 Nov. 2016.

Garcia, Alfredo. The Sixth Amendment in Modern American Jurisprudence. Westport, Conn.: Greenwood, 1992.

Golde, Kalvis. "Petitions of the Week: Colorado Man Argues Last-minute Switch in Public Defenders is Unconstitutional." SCOTUSBlog, 1 Aug. 2024, www.scotusblog.com/2024/08/colorado-man-argues-last-minute-switch-in-public-defenders-is-unconstitutional. Accessed 24 Aug. 2024.

Horne, Gerald. Powell v. Alabama: The Scottsboro Boys and American Justice. New York: Franklin Watts, 1997.

Lewis, Anthony. Gideon’s Trumpet. New York: Vintage, 1989.

"Protecting the Right to Counsel – Robbins v. MCILS." ACLU of Maine, www.aclumaine.org/en/robbinsvmcils. Accessed 24 Aug. 2024.

"The Right to Counsel in America Today." Sixth Amendment Center, 2016. sixthamendment.org/what-we-do/the-right-to-counsel-in-america-today. Accessed on 28 Nov. 2016.

Wallentine, Ken. "When Does the Sixth Amendment Right to Counsel Attach?" Lexipol, 30 May 2023, www.lexipol.com/resources/blog/when-the-right-to-counsel-kicks-in. Accessed 24 Aug. 2024.

Wice, Paul B. Miranda v. Arizona: “You Have the Right to Remain Silent . . .” New York: Franklin Watts, 1996.