Failing the Sixth Amendment's Promise of Right to Counsel

Instead of ensuring budgets for proper counsel for the poor, many states have gone the other way and slashed funding for public defenders offices. That is no way to honor, let alone uphold, a fundamental constitutional right.
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During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.

As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."

There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.

Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The 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. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

But, as Stephen Bright, head of the Southern Center for Human Rights, told the American Constitution Society for Law and Policy (ACS) in a recent interview, far too many states have shunned the Sixth Amendment's mandate. He says too many states provide only "perfunctory" legal assistance to those who need it most. If the states were faithfully following the promise of the Sixth Amendment, Bright and many others point out that our prisons might not be near as full as they are, for competent counsel would keep many people out of jail.

We know part of the problem is that poor people in our country do not make a political constituency. At a Harvard symposium in the spring about the legacy of Gideon and the future of legal services co-sponsored by ACS, University of North Carolina School of Law Professor Gene Nichol took the legal system's treatment of the poor to task, saying, "Millions of poor litigants ... are denied every day in every court, in every court system, in every state and every level of this broad nation, a foundational right to a meaningful hearing, at a meaningful time before forfeiting constitutionally secured interests." Nichol continued, "The largest single defect of the American system of justice -- making a mockery of the phrases etched on our courthouse walls, proving the great American asterisk, the delegitimizing asterisk: Equal justice for those alone who can pay the ride of significant fare."

That's a strong condemnation, but fair. Instead of ensuring budgets for proper counsel for the poor, many states have gone the other way and slashed funding for public defenders offices. That is no way to honor, let alone uphold, a fundamental constitutional right. Many groups, such as the Southern Center for Human Rights and the National Legal Aid & Defender Association, are working to change course to ensure equal access to our nation's courts.

At ACS we spend great resources and energy to ensure the right to counsel is not a platitude, but a constitutional right that the government must ensure. Our Constitution in the Classroom project, which occurs twice a year -- during Law Day in the spring and Constitution Day in the fall -- is teaching young people about the vital role of the Sixth Amendment and the right to counsel. ACS members around the country are speaking to primary and secondary school students about why they should care how the courts and our political leaders have understood -- and should understand -- the right to counsel. We have published numerous Issue Briefs from leading legal scholars on the right to counsel and legal services and host frequent panel discussions as part of our efforts to make the right to counsel a real and cherished constitutional right. All of that work is available on our website's Indigent Defense resources page. We hope during this week of Constitution Day, many will take time to think about how important equal access to our court system is.

Justice Alexander George Sutherland, in a case preceding Gideon, Powell v. Alabama, wrote, "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." The accused, Sutherland continued, "requires the guiding hand of counsel at every step in the proceedings" and without it faces great danger of losing liberty. Regardless of one's ideological leanings, we should all be motivated to preserve liberty for all, not just the few.

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