The Right to Defense Counsel

Issue Overview

The right to counsel is a constitutional right guaranteed to all citizens of the United States who are involved in criminal prosecutions. As written in the Sixth Amendment to the United States Constitution, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence [sic].”¹ Subsequent decisions of the Supreme Court have highlighted the contours of the right to counsel, always emphasizing that this extends to protect those who are unable to afford the fees of a private attorney.² The Court has also held that assistance of counsel must be effective.³ Since 1974, the U.S. Justice Department has issued standards to govern indigent defense.⁴ As a result, jurisdictions generally maintain up-to-date lists of court appointed attorneys who will serve as defense counsel to indigent individuals with criminal cases before the court.

The right to counsel applies at critical stages of a criminal case, including interrogation after arrest, line-ups and identification procedures, preliminary hearings, arraignments, and plea bargain negotiations.⁵ The right also applies after conviction in sentencing proceedings, appeals of right, and in certain probation and parole proceedings.⁶ The right to counsel also extends to some other proceedings not traditionally a part of a criminal case, where those proceedings may result in deprivation of liberty. These include hearings on the subject matter of mental competency and commitment, extradition, prison disciplinary proceedings, some family cases, juvenile status offense hearings, and cases of abuse and neglect.⁷

Access to effective counsel varies across jurisdictions, and caseloads often overwhelm the resources of court-appointed legal representatives. Despite the American Bar Association’s recommendation that no public defender manage more than 150 felony cases each year, attorneys in Miami Dade County had to serve in 700 cases annually.⁸In 17 states, counties are primarily responsible to fund indigent defense.⁹Limited availability of state and federal aid and discrepancies in county fiscal capacities contribute to risks of poorly funded and overworked defense attorneys.¹⁰ And, in the absence of a precise definition of effective counsel, state courts have been ill-equipped to intervene in case-specific instances of poor indigent counsel.¹¹ However, systems in which full-time public defenders are hired and managed out of centralized state or local offices have proven more successful in reducing conviction rates, severity of sentences, and taxpayer costs than contracts with outside private attorneys or firms.¹² Several state and local initiatives also show promise for improving the quality of legal representation. For example, mentoring and training programs from the District of Columbia’s Public Defender Service have been hailed as a model for promoting excellence and morale among new public defenders.¹³

Position

Prison Fellowship believes that a just process is an integral part of a successful, restorative criminal justice system. Ensuring access to effective counsel requires adequate attention and resources devoted to indigent defense services. To fully engage due process, each party must have the opportunity to be zealously represented in a court of law where they are presumed innocent until proved guilty. The assistance of an equipped attorney also allows for the maximum level of participation by the responsible party in court proceedings, including participation with full consideration of plea bargains, impact statements, and other key moments in preparation, trial, and settlement.

Jurisdictions should pursue excellence in their provision of indigent defense services, recognizing that inadequate provisions in this area have dramatic impacts on poor and marginalized people in our communities. In particular, 1while most racial groups require indigent defense services, data from state criminal cases shows that Black and Latino defendants are more likely to be assigned a public defender or assigned counsel compared to their white counterparts.¹⁴

All people, regardless of their access to wealth, their race, or their influence, should enjoy unburdened access to this primary right guaranteed by the Sixth Amendment. The right to counsel is, in the words of Chief Justice Roberts, “the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys.”¹⁵ By upholding this vital principle, our society maintains the truth of each person’s individual dignity and worth, upholds their potential for human flourishing, and ensures just process.