Sixth Amendment right to counsel: broaden the scope, decriminalize, and ensure indigents a fair chance in court and in life.

AuthorPena, Maria C.
PositionSt. Thomas Law Review 25th Anniversary Issue


In the landmark case of Gideon v. Wainwright, (1) the United States Supreme Court stated that "[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." (2) Since then, barely fifty years ago, the Court has added a surprising exception to Gideon's finding: the right to counsel is not fundamental to a person too poor to hire a lawyer in cases where the prosecution does not seek a penal sanction, whether it is authorized or not. Amazingly, the Court has determined that the fundamental fairness of a trial depends on the post-trial sanction to be imposed. If this is the case, then it would have been easier for the Court in Gideon to state that the right to counsel is fundamental only in retrospect when a defendant is in a jail cell, rather than finding the right fundamental generally to the proceedings. Thus, the right to counsel is currently based on the possible result of trial, rather than focused on the fairness of the entire criminal process.

The Supreme Court cases founded upon Gideon have all discussed the fundamental nature of the right to counsel generally, whether the discussion was made in the text of the majority opinion, concurrence, or dissent. However, the Court has failed to push over the fence and lift the unnecessarily drawn line from Scott's "actual imprisonment" standard, and has therefore refused to extend the right to counsel to its Sixth Amendment textual origin: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (3) Thus, the Supreme Court has erroneously hidden behind the dreary cloak of imprisonment to deny the right to counsel to indigents who do not face a prison sentence, but who are ultimately convicted.

Part I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, the solution proposes that state legislatures should adopt a process of decriminalization to alleviate the potential administrative burden of broadening the right to counsel.



      In England, the right to counsel in criminal cases was very different from what it is in the United States today. Originally, an individual accused of a misdemeanor was entitled to, and required to have, full assistance of counsel, whereas an individual accused of a felony or treason was not entitled to the same right. (4) It is difficult to grasp how a defendant facing a comparatively light punishment was permitted assistance of counsel, but one whose life was on the line for a felony charge was not. (5) The logic, arguably, stemmed from the notion that an assessment of guilt as to issues of fact in felony cases would be objectively obvious and thus the judge would be able to act as counsel for the defendant. (6) No matter what crime was charged, a defendant was always permitted counsel as to questions of law, rather than fact. (7) This rule, however, was considered outrageous and was greatly criticized by English statesmen and lawyers. (8) It was not until 1836 that the right to have the assistance of counsel was permitted to all defendants, whether civil, misdemeanor, felony, or treason. (9)

      At the time of the establishment of the colonies, approximately twelve of the original colonies had rejected the rule of the English common law and recognized the right to counsel in all criminal prosecutions, except in instances where the right to counsel was limited to capital offenses or what were considered to be serious crimes. (10) The right, however, was usually conveyed by statute rather than the constitution of the state. (11) In 1789, the Sixth Amendment right to counsel originally meant a court would not prevent assistance of counsel for a defendant if the defendant provided counsel for himself. (12) Thus, despite the long-held English common law practice of assigning counsel to an indigent defendant, there is no indication that the Sixth Amendment clause was intended for the court to assign counsel to an unrepresented defendant. (13) It has also been viewed that the provisions of the Sixth Amendment were intended to do away with the rules which wholly or partially denied counsel, rather than proposed to compel the state to provide counsel for a defendant. (14)

      Over the years, the Sixth Amendment right to counsel has been expanded, diminished, and clarified by different justices, even though the text itself seems self-evident: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (15) In Powell v. Alabama, (16) the U.S Supreme Court squarely presented the importance of assistance of counsel in general, but the holding applied only to capital cases. (17) However, despite Powell's narrow holding, the case presented a broad, general explanation as to the importance of the assistance of counsel and stated that the right is clearly of a "fundamental character." (18)

      The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. (19) The Court, however, did not expand its holding and chose to refrain from deciding whether the right would be the same in other types of criminal prosecutions because the case at bar was a capital case. (20) Therefore, the Court held,

      [I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.... (21) The particular facts of Powell involved defendants that were incapable of adequately representing themselves due to their social status, distance from home, and level of education. (22) However, the Court's motives or reasons for including the "ignorance and feeble-mindedness" qualifications are questionable. If the Court's holding was largely influenced by those particular characteristics then it was arguably unnecessary for the Court to engage in its lengthy, soap-box dicta about "intelligent and educated laymen" who also lack the requisite skills to adequately defend themselves. (23) Therefore, the weight given to the level of intelligence in the assessment of the right to counsel in Powell is contradictory. Powell advocated in broad, sweeping language the fundamental character of the right to counsel generally, for both the educated and feeble-minded, because of the layman's unfamiliarity with the complicated nature of the law. Yet, despite this, the Powell Court retained the intelligence qualifier in its holding and limited the future application of the right specifically to capital cases for indigents incapable of making their own defense.

      In 1938, the U.S. Supreme Court reiterated the importance of counsel in Johnson v. Zerbst (24) as "one of the safeguards of the Sixth Amendment deemed necessary to [e]nsure fundamental human rights of life and liberty." (25) In addition, the Court further explained the constitutional right is meant to protect an accused from a conviction that results from a defendant's ignorance of legal and constitutional rights. (26)

      Inexplicably, in 1942, the U.S. Supreme Court in Betts v. Brady (27) found the Sixth Amendment right to counsel not to be a fundamental right essential to a fair trial and, therefore, was not applicable to the states through the operation of the Due Process Clause of the Fourteenth Amendment. (28) In arriving at this decision, the Court first focused on three cases, Powell v. Alabama, Avery v. Alabama, (29) and Smith v. O'Grady, (30) in each of which the applicable state law required appointment of counsel for the particular case. (31) The Court then conducted its own research of the right to counsel under English common law, during the formation of the colonies, and through the present status of the states. Ultimately, the Court decided that the variations among the states demonstrated that the majority of states considered the right to be a "judgment of the people" left for the legislature to decide. (32) The majority opinion also emphasized that the defendant in the case was one of "ordinary intelligence" who had previously been involved in criminal proceedings and thus was not "wholly unfamiliar" with the system. (33) Therefore, the Court concluded the defendant had the "ability to take care of his own interests on...

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