The right to counsel originates from the Sixth Amendment of the U.S. Constitution. However, the original draft of the Constitution did not contain the Sixth Amendment or any other amendments that guaranteed individual rights.
Although a fine blueprint for a Democracy, the original constitutional document spelled out only what the government could do but said nothing about what the government could not do.
That is the way the Federalists wanted it—a “consent to be governed” document that applied only to white men who owned land and muskets. It did not protect Native Americans, women, slaves, free people of color, or non-white immigrants.
The Federalists today are represented by the National Republican Party, as evidenced by the vise-like grip the current Federalist Society has over the party.
The original Federalist Papers were written by conservative founders James Madison (who became known as the “Father of the Constitution”), Alexander Hamilton, and John Jay. Federalist No. 84 specifically rejected the notion that the individual should have a “Bill of Rights” as a constitutionally recognized protection from unlawful governmental action.
The anti-Federalists, the “liberals” of 1787 led by Thomas Jefferson and Patrick Henry, strongly believed and fought to secure the inclusion of the Bill of Rights (the first ten amendments) into the U.S. Constitution.
Thus was born the Sixth Amendment right to counsel.
But in 1883, the Supreme Court in Barron V. Baltimore shot down the notion that this right or any of the other Bill of Rights applied to the states. Writing for the Court’s majority, Chief Justice John Marshall, an influential Federalist advocate, stated that the Bill of Rights amendments “contain no expression indicating an intention to apply them to the State governments.”
Even today, three Federalist-minded Supreme Court Justices—Clarence Thomas and Neil Gorsuch— believe the Court should overrule, or scale back, the right to counsel for indigent defendants now guaranteed by the Sixth Amendment.
14th Amendment Ratified
Fortunately, 35 years after the Barron decision and three years after the Civil War, the Fourteenth Amendment was ratified. The amendment states:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction to equal protection of the laws.”
Still, it was not until 1926—nearly six decades after the ratification of the Fourteenth Amendment—that the Supreme Court recognized in Herbert v. Louisiana that the due process provisions contained in the amendment made the Bill of Rights applicable to the states.
Right to Counsel
Six years later (1932), the Supreme Court in Powell v. Alabama, more commonly known as the “Scottsboro Boys” case, reversed the rape convictions and death sentences given to nine African-American youths because they were denied the assistance of counsel until the morning of the trial. The Court ruled that all citizens under the equal protection provisions of the Fourteenth Amendment had a right to counsel in capital cases.
Powell began the evolution of the Sixth Amendment right to counsel and the protections that right entails. The Annenberg Classroom, an online classroom focusing on the U.S. Constitution, has compiled the following list of Supreme Court decisions dealing with the constitutional parameters of the right of counsel:
- 1938 Johnson v. Zerbst: Indigent defendants have the right to counsel in Federal cases.
- 1942 Glasser v. United States: An attorney with a conflict of interest cannot provide effective counsel.
- 1954 Chandler v. Fretag: Denial of counsel ruled unconstitutional.
- 1963 Gideon v. Wainwright: Right to counsel for indigent defendants extended to states.
- 1964 Massiah v. United States: Counsel must be at questioning after a suspect is charged.
- 1964 Escobedo v. Illinois: Counsel must be at questioning before a suspect is charged.
- 1966 Miranda v. Arizona: Police must give “You have the right to remain silent” warning once a suspect is taken into custody, known as “Mirandizing.”
- 1967 Anders v. California: Defense attorney must follow through on appeal after conviction.
- 1967 United States v. Wade and Gilbert v. California: Right to counsel applies at pretrial identification lineup.
- 1972 Argersinger v. Hamlin: Defendant cannot be sentenced to jail unless offered appointment of counsel.
- 1975 Faretta v. California: A defendant has right to self-representation, and the state cannot force counsel upon the defendant.
- 1977 Brewer v. Williams: Type of police questioning beyond routine interrogation also triggers the right to counsel.
- 1979 Scott v. Illinois: The possibility of jail confinement alone is not enough to trigger the right to counsel.
- 1980 Cuyler v. Sullivan: Clarified rules for conflicts of interests when a defense attorney is representing multiple clients, finding that defendant need only show that the attorney’s conduct adversely affected him.
- 1980 United States v. Henry: Right to counsel exists when someone other than the police gathers evidence.
- 1984 McKaskle v. Wiggins: Standby counsel appointed by Court does not violate self-representation right.
- 1984 Strickland v. Washington: Defines test for ineffective assistance of counsel requiring a showing of deficient performance by counsel, ensuing prejudice caused to the defendant, and prejudice must be sufficient to demonstrate a reasonable probability that a different verdict would have been returned absent the prejudice.
- 1985 Evitts v. Lucey: Right to effective assistance of counsel extended to appeal process.
- 1985 Hill v. Lockhart: Right to effective assistance of counsel extended to plea bargain process.
- 1986 Michigan v. Jackson: Police questioning cannot occur after an attorney is requested.
- 1993 Godinez v. Moran: A defendant must be mentally competent to waive the right to counsel.
- 2000: Roe v. Flores-Ortega: No absolute requirement that attorney appeal conviction of a defendant who pleads guilty.
- 2002 Bell v. Cone: Ineffective trial strategy does not necessarily rise to the level of ineffective assistance.
- 2002 Wiggins v. Smith: Reinstates right to effective counsel in capital cases when counsel does not present mitigating evidence during the sentencing phase.
- 2009 Montejo v. Louisiana: Overturned 1986 ruling in Michigan v. Jackson barring police interrogation once a suspect is appointed counsel, reasoning that the defendant must assert rights to counsel or the right to remain silent.
- 2019 Garza v. Idaho: Attorney must follow the defendant’s instruction to appeal even if the defendant signs a waiver of appeal as part of a plea agreement.
That’s twenty-seven decisions, beginning with Powell v. Alabama, over 87 years, that the nation’s highest Court has grappled with the Sixth Amendment right to counsel. This litany does not include the tens of thousands of other “right to counsel” cases in the 12 federal circuit courts of appeals and state appellate courts since 1932.
Yet despite these thousands of cases, the nation’s indigent defender programs are in crisis, with many providing attorney services in name only because public defenders are overwhelmed with caseloads they cannot adequately service. The Sixth Amendment Center points out that the U.S. Justice Department has described these state indigent systems as:
- Inadequate
- Broken
- Unjust
- State of crisis
- Devastating consequences
- Morally untenable
- Unconscionable
- Unacceptable
- Economically unsustainable
- Unworthy as a legal system
The right to counsel is a model component of democracies around the world. It must never be taken for granted.
It is vital all people in the United States educate themselves and know how to assert their Constitutional rights. The simple invocation of the right to counsel can prevent an uncontrollable slide down the slope to a potential wrongful conviction. The invocation of this right cannot be used against an individual in court for any purpose.
“I know my rights. I will not speak to you without an attorney.” These simple yet powerful words can stop the government, with all ‘s incredible power, in its tracks.