By Shannon Alvino
Shannon Alvino is a junior at The George Washington University majoring in Political Science and Criminal Justice
The United States Supreme Court has entertained an eight-decades-long complicated relationship with the Sixth Amendment’s right to counsel. Here is an overview:
· Powell v. Alabama (1932) required that trial courts appoint legal representation in capital cases “where the defendant is unable to employ counsel, and is incapable of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like.”
· Johnson v. Zerbst (1938) lengthened the guarantee to any defendant facing federal criminal charges.
· Betts v. Brady (1942) declined to extend the right to indigent defendants in all criminal cases; counsel was appointed only when failure to do so would be “offensive to the common and fundamental ideas of fairness.”
· Gideon v. Wainwright (1963) firmly established indigent defendants’ Sixth Amendment privileges, labeling counsel “fundamental and essential to fair trials.” Due process demanded that states conform to this federal interpretation, overruling Betts and entrenching notions of fairness.
· United States v. Wade (1967) reasoned that “today’s law enforcement machinery involves critical confrontations” that trigger the Sixth Amendment, including post-indictment lineups.
· Kirby v. Illinois (1972) specified a “critical stage” as any instance after the initiation of formal adversarial proceedings. Custodial interrogations, post-indictment corporeal lineups, preliminary hearings, arraignments, trials, sentencing hearings, and first appeals constitute “critical stages.”
· Argersinger v. Hamlin (1972) announced “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.”
· Scott v. Illinois (1979) argued convicted individuals could be incarcerated only if they received legal assistance. If the defendant is not sentenced to “actual imprisonment,” even if the applicable law allows for it, the Sixth Amendment does not apply.
· Strickland v. Washington (1984) created a standard for the resolution of ineffective counsel claims. The first prong assesses attorney performance, requiring the defendant to “show that counsel’s representation fell below an objective standard of reasonableness.” The second prong hinges on prejudice; a defendant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Sixth Amendment jurisprudence has substantially evolved since Powell’s bare-bones requirement; however, it has lagged behind the ever-evolving criminal justice system. In Wade, the Court came to its conclusion “[i]n recognition of these realities of modern criminal prosecution,” referencing how the Framers, the delegates who helped to draft the US Constitution, lacked an organized police force, and much less “critical confrontations.” The Founding Fathers did not face an indigent defense system in a crisis, a plague of ineffective assistance, a host of collateral consequences, or omnipresent plea bargains, yet the right to counsel has remained stagnant.
Gideon trumpeted principles of fairness, yet the contemporary criminal justice system is anything but. Indigent defense funding is “shamefully inadequate,” resulting in overwhelming caseloads that preclude a satisfactory defense, a lack of systematic training, interfering cost-cutting measures, and a less-than-adversarial justice system when compared to prosecutorial resources. Modern indigent defense remains a hollow enforcement of the lofty Sixth Amendment ideals espoused in 1963, earning the moniker “Gideon’s broken promise.”
Effective counsel is the most important right a defendant has, for it is the only means through which other constitutional guarantees are exercised. As Senator Patrick Leahy lamented, “Too often individuals facing the ultimate punishment are represented by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain ineffective. Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.” Strickland’s intentionally broad, overly deferential rule essentially prohibits defendants from successfully challenging their legal representation’s inept performance, stripping the right to effective counsel of its remedy.
And remember those “critical stages?” There is a myriad of legal proceedings that do not demand the right to counsel including parole or probation revocation hearings, grand jury proceedings, immigration deportation hearings, discretionary appeals, and habeas corpus proceedings. What about that “actual imprisonment” distinction? Defendants receive legal assistance when they are facing time behind bars but today’s criminal justice system is saturated with sneaky, often inexplicit collateral consequences that prove just as damaging. These include limited employment eligibility, barriers to political participation, constricted access to public benefits like welfare and housing, suspended driver’s licenses, undermined custody rights, and automatic sex offender registration, to name a few. In short, at each stage of the criminal process, defendants routinely face harsh sanctions without counsel.
Indigent defendants also confront “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” Plea bargains resolve 97 percent of federal and 94 percent of state cases but lack transparency and the regulatory scrutiny of judicial review. Overall, these poisonous dynamics have reduced the modern criminal justice landscape to a dismal reality, one that breaches a Sixth Amendment-inspired philosophy of fairness, however, the Court has made unenthusiastic efforts to acclimatize.
These meager jurisprudential adaptations include a recent plea-bargaining trio that establishes the right to counsel in this newly pervasive aspect of the judicial system. This is what happened:
· McMann v. Richardson (1970) ruled that determining adequate legal representation in advising a guilty plea depends on “whether that advice was within the range of competence demanded of attorneys in criminal cases.”
· Padilla v. Kentucky (2010) labeled plea bargains a critical phase of a criminal prosecution necessitating legal assistance. It is “the critical obligation of counsel to advise the client of ‘the advantages and disadvantages of a plea agreement,’” including the risk of deportation.
· Missouri v. Frye (2012) compelled counsel to notify clients of any plea offers. A failure to communicate a prosecutor’s offer constitutes ineffective legal representation, accommodating Strickland’s effectiveness standards to the plea-bargaining context.
· Lafler v. Cooper (2012) offered a remedy to defendants prejudiced by ineffective counsel resulting in the rejection of a plea and a trial conviction. The prosecutor is required to reoffer the plea and the trial judge is to exercise discretion in deciding whether to accept the plea or affirm the conviction.
Justice Scalia derisively dissented in each recent case, arguing that the Court judicially fashioned a “new field of constitutionalized criminal procedure: plea-bargaining law.” This conclusion portends a fate similar to Gideon, an absence of direction and enforcement will render the decisions toothless.
So, what can be done? Money will be the most significant catalyst for change, whether that is the states or Congress allocating ample funds to public defense, resulting in improved training, manageable caseloads, and prosecutorial parity. State governments and bar associations can establish oversight organizations to ensure the delivery of independent, uniform, quality indigent defense. A collection of Supreme Court decisions addressing the often-harsh realities of the contemporary criminal justice climate would be nice, too.
American Bar Association Standing Committee on Legal Aid and Indigent Defendants. “Gideon’s Broken Promise: America's Continuing Quest for Equal Justice.” (2004): 1-62. Print.
Argersinger v. Hamlin, 407 U.S. 25 (1972).
Betts v. Brady, 316 U.S. 455 (1942).
Cong. Rec. 5 Nove. 2004: S11609-S11614. (statement of Sen. Leahy).
Gideon v. Wainwright, 372 U.S. 335 (1963).
Goode, Erica. “Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals.” The New York Times. 22 Mar. 2012. Web. 13 Mar. 2017.
Johnson v. Zerbst, 304 U.S. 458 (1938).
Kirby v. Illinois, 406 U.S. 682 (1972).
Lafler v. Cooper, 566 U.S. __ (2012).
McMann v. Richardson, 397 U.S. 759 (1970).
Missouri v. Frye, 566 U.S. __ (2012).
Padilla v. Kentucky, 559 U.S. __ (2010).
Powell v. Alabama, 287 U.S. 45 (1932).
Scott v. Illinois, 404 U.S. 367 (1979).
Strickland v. Washington, 466 U.S 668 (1984).
United States v. Wade, 388 U.S. 218 (1967).
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.