01 June 2005

The Right to Counsel

Rising from some interesting indigent defense questions raised in Mr. District Attorney a discussion began which then transferred to a Public Defender and then to Confutatis Maledictis - here and here; Gideon and Tom have been going back and forth as to whether the 6th and 14th Amendments require States to provide counsel for an indigent defendant. Gideon has been arguing caselaw but Tom is unconvinced because he doesn't see the requirement that the State provide counsel actually written into the constitution.

Here's the Amendment in toto:
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 defence.
Let me first say that I think Tom is right. There is absolutely no requirement that the State provide a lawyer for the defendant. Tom states what is probably the correct "original intent" of this section: "the concern of the 6th Amendment was to depart from the common law by ensuring that counsel would be permitted in all criminal cases." That said, the founders didn't write that into the Constitution. It doesn't say "an accused may have counsel in any criminal prosecution", it sets out a "right" to counsel.

Each American is guaranteed "the right . . . to have the Assistance of Counsel for his defence." There are no qualifiers such as "if he can afford it" (yeah, I know the founders would have said it fancier but I'm a plain spoken sort). So now we're faced with the conundrum - how do we deal with this plain requirement that the defendant has a right to an attorney for his "defence?"

There is no remedy section of the Constitution and the courts have had to fashion those over the years. The court could have tried to force all State Bars to require all members to serve pro bono publico in criminal defense cases; it could have ordered that all who cannot afford a lawyer have their cases dismissed; it could have required the government to provide counsel for indigents. The first two of these are pretty obviously unworkable; the third is a workable and just (always a bonus) solution. Still, it is a court created solution; maybe Tom has a better one?


Tom McKenna said...

At the risk of beating a dead horse, let me just remark that my only point is that the 6th does not itself establish a right to court appointed counsel, only a right to counsel. There is no inherent logic that compels the conclusion that if a right is acknowledged, the government must pay for your exercise of it. You have a right to free speech but the government does not have to buy you a radio station. You have a right to vote, but the government does not have to pay your bus fare to the polling station.

My original point was, and remains, the 6th is silent on the issue, and therefore cannot be construed to impose an obligation on the government (much less the STATE governments) it does not reference but easily could have if that's what the intent had been. The framers could have said "no one found to be indigent shall be put in jeopardy without the provision by the state of an attorney for his defense." They didn't say it, and the way the constitution is supposed to work, if it ain't in there, it ain't required. That's why no court thought it was until almost 150 years had gone by! [1938 (Federal courts must appoint counsel) and 1963 (states must appoint counsel)].

That's why, again, the Supremes had to cook up this "requirement" by "finding" it in the 14th amendment, where, amazingly, all kinds of hitherto unknown "rights" are discovered. Here again, it took someone almost 100 years to "discover" this "right" lurking in the 14th amendment.

I'm only suggesting we speak honestly and admit it's just imposition of personal judicial preferences, not constitutional law.

Mister DA said...

Like Ken, I think Tom is right, in the abstract. My state has had constitutional provisions similar to the 6th amendment since it was part of the Northwest Territory. It has also had statutory provisions regaring the appointment of counsel for defendants who "are unable to procure counsel" on their own, and provisions for the county to pay appointed counsel for that representation. The kicker is that the statutes (the earlist versions of which date back to the 1830s) were permissive - the judge may appoint on a proper showing. Thre is a fair body of case law running down to the 1960s stating that the right was just as Tom says - the right to have counsel appear - something that was not a part of the common law - and that there was no right to counsel at public expense. (A view shared by Justice Scalia, by the way.) I am told, however, that the general rule was to appoint for anything the might send a man to state prision. Local records, going back to the 1950s, seem to bear this out.

Anonymous said...

I completely understand all the points made so far. Yet, for some own reason (perhaps my lack of intelligence), I cannot believe it to be so. What good is a right - a fundamental right, if it cannot be exercised? Would the framers - did the framers - include a right that they did not contemplate being availed of by every single individual in the country?

The Constitution says clearly, "in all criminal prosecutions". It is unequivocal, fundamental and hence, has to be enforced.

That it was not, for a long time, recognized, does not make it an invention of a liberal court.

Ken Lammers said...

Gideon - You must realize that Tom and I live in a State where it is thought that having a right without a remedy is just fine. If the Virginia constitution or a Virginian statute purports to recognize or give a citizen a right it's just pretty words unless a remedy is written right next to it. See i.e. Janis v. Commonwealth, 22 Va.App. 646 (1996).

Tom's right in his assertion that there's nothing which requires the present solution. However, falling back on historical tradition in which the words of the Amendment were ignored doesn't work either. Refusing to provide a remedy for a right is a sham; it means there is no right. This doesn't mean that a different type of guarantee of this right might not have worked as well or better. I just can't think of another solution that would work as well.

Ken Lammers said...


In every asserted right there is some sort of burden on the government. In the 1st Amendment the government may not have to buy me a newspaper but it does have to provide me access to the public forum; hence the areas for demonstrators at events like the inauguration. For the right to vote the government must provide the polling places and staff them. How else would we be able to exercise that right?

In the end the important question is how much burden should be placed upon the government. In cases involving the deprivation of physical liberty it's logical to expect a higher burden to rest on the government. And, of course, the common law (with things such as the rule of lenity and proof beyond a reasonable doubt) also indicates that the burden on the government should be heavy.

Anonymous said...

Yes, that puts it very well... I guess nothing short of the words "in all criminal prosecutions... accused shall have the right to counsel and if the accused cannot afford to retain counsel, the state shall provide counsel", would have sufficed.

Well, we can finally lay this debate to rest.

Anonymous said...

Lordy, it is distressing to see the discussion shift to how much a burden on the government is tolerable. For a document as libertarian ('liberal', in the classic sense, but that word is poisoned these days) as the Constitution, this is a sad day.

Mister DA said...

This is not frivolous. NOT. FRIVOLOUS. NOT.

Consider the 2nd Amendment. What good is the right to keep and bear arms if I can't afford a gun?

Consider the 8th Amendment. What good is a right against excessive bail when I have no assets and ANY bail is excessive?

My point is that the rights we take for granted are essentially negitive rights as against the government. "Congress shall make no law. . . " ". . . the right of the People. . . shall not be infringed." "The right of the People . . .shall not be violated. . ." "No State shall make or enforce any law. . ." "The right of Citizens . . .to vote shall not be denied or abridged. . ." and so on and so on.

And the only duty the 1st Amendment places on government is not to unreasonably regulate public speech or assembly. It's still a negative duty.

Tom McKenna said...

Good point, Mr. DA... esp. reference the 2d amendment. The purpose of that amendment being the maintainance of a well regulated militia, that "right" to keep and bear arms really ought to be subsidized by the government. After all, as Ken so eloquently states, there is no right if you can't afford to exercize it. And just as a trial is "sponsored" by the government, imposing a burden on it to subsidize the right to counsel, so also the arming of a well regulated militia is an undeniable government function.

Where's Ted Kennedy with the government handout when you need him? Let's see, should I get the AK or the MR15??

Ken Lammers said...

Tom - If you are experienced and capable I would say go with the M16A2. However, if you just need an extermely idiot proof and reliable weapon for spray and pray get the AK.

Tom McKenna said...

Well, Ken, I guess it depends on who you ask... since you've tried cases with me, you might say I need the idiot proof AK!

Anonymous said...

Mr. DA, so if I understand your position correctly, you're saying that the 6th basically says the govt. can't stop you from having an attorney present if you want one (and if you can afford one), just as they can't stop you from posting bail, if you can afford it.

Still, is a fundamental right a fundamental right if it cannot be exercised by one and all?

Speaking of "sponsoring" a trial, I figure it's the taxpayer's money that pays for all of this - as it does for my salary and prosecutors. I'd be very hesitant to call it a "burden". A public service would be more true to the nature.

Mister DA said...

Yes, that's essentially it. There are lots of fundamental rights that it is up to the individual to enforce. Hell, the courts won't even impose an individualized duty to protect on your local police agency. Consider the non-criminal side for a moment -- is there a fundamental right to access to the courts? If there is, where are the civil counterparts of PDs?

As to the exercised by one and all aspect - consider freedom of the press - it donesn't do me a lot of good if I don't have the wherewithall to publish.

As to the Second Amenedment - I'd prefer an H&K G3 or, if I have to compatible with the regulars, a G41. For casual courtroom use, I don't think you can beat the FN P90. The darn thing doesn't even look like a gun all that much.

Anonymous said...

Doesn't the fact that the first and second amendment are phrased in the restrictive sense "right such and such may not be infringed," and that the 6th amendment is phrased in the affirmative sense "the accused shall have rights so and so" make a big difference?

"The accused's right to a cookie shall not be infringed."


"All accused shall have the right a cookie."

Seems like in the first one, you can't take the cookie away, but in the second one, you have to provide a cookie.