The Sixth Amendment to the U.S. Constitution

As almost every American has learned from watching a myriad of police shows, a person charged with a crime has the right to an attorney and if that person cannot afford an attorney, one will be provided for them.  Contrary to the television shows, the language about the right to an attorney contained in the Sixth Amendment to the U.S. Constitution —  “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense” – was not initially interpreted in a way that fits the current public understanding.

For many Americans the Sixth Amendment right to counsel is still illusionary.

Sixth Amendment and Right to an Attorney

There was not a general right to an attorney until 1963 when the Supreme Court  decided Gideon v. Wainwright, 372 U.S. 335 and held that the Sixth amendment right to an attorney existed for every defendant regardless of their ability to pay.  The Court extended the  right to counsel  to juveniles  in In re Gault, 387 U.S. 1 (1967).  Finally, the right to counsel  in misdemeanor cases was established in Argersinger v. Hamlin, 407 U.S. 25, 40 (1972) where there was an “actual deprivation of a person’s liberty”.(meaning the person was facing jail time).

Unlike the defendants on “Law and Order” however, for many Americans the Sixth Amendment right to counsel is still illusionary. Far too often, particularly in less serious cases, defendants never talk to an attorney, let alone have one represent them.

States Determine Who Qualifies

The problem starts with the Supreme Court’s decision in Gideon, where the determination about who qualifies for legal representation at public expense, was left to the states. However, what may have seemed obvious to nine Justices was far less clear in the local courthouse.  During the great recession, state and local funding units pushed for reductions in all court expenditures.  The public defender’s budget was an obvious target and it was soon   a generally accepted practice.

As most cities or counties do not have a public defender’s offices, private attorneys are hired to provide legal services for a flat fee paid by the government. In many cases the fee does not vary based upon the number or complexity of the cases.  More experienced lawyers could not afford the fee reductions and so either inexperienced lawyers were hired or no attorney was appointed at all.

Attorneys and Misdemeanor Cases

This is particularly true in misdemeanor cases.  The U.S. Supreme Court held in Argersinger supra, when a defendant’s freedom was in question, the constitution required that they be represented by counsel.  Yet, in misdemeanor cases across the country judges accept guilty pleas to a misdemeanor charges with a sentence bargains for whatever time defendants have served, thinking that they saving both court and jail dollars. Many defendants agree to  these plea bargains simply to get of jail.

The problems are not limited to state courts or lower level cases.

Worse, defendants in traffic cases, which often are civil infractions carrying no jail penalty, find themselves being placed in jail for failing to pay the fine.  Many of these defendants cannot pay as they live below the poverty line.  In the vast majority of these cases, no attorney has been appointed nor is present when they are toted off to jail for non-payment.

Does Sixth Amendment Provide More than Attorney?

The problems are not limited to state courts or lower level cases.  Recently, a federal district judge appointed attorneys for a death row inmate and then refused a request for sufficient money’s to hire a mental health expert to provide evidence showing their client was unable to assert his own rights in an earlier proceeding.

The result was so outrageous that a group of retired appellate judges and state Supreme Court Justices filled a friend of the court brief arguing that the right to counsel is more than just having an attorney:  “The issue here is not whether attorneys should be able to earn the same amount by serving indigent clients as they could by serving wealthy white collar defendants…. it is whether the funding decisions that district courts make in capital habeas cases reflect the complexity of the issues presented and the magnitude of our society’s interest in ensuring that nobody is executed who does not deserve to be.”^[1]

More than 50 years later, Gideon’s promise that all defendants who are threatened with incarceration will be represented by an attorney has still not been kept.  The American Constitution requires it and we as a nation have a collective obligation to ensure it, not just on a television show, but in the courts where real people face real charges.

^[1]http://www.constitutionproject.org/documents/former-judges-tell-8th-circuit-effective-counsel-for-indigent-defendants-requires-adequate-funding/