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History of Right to Counsel
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Roots of the modern right to counsel for the defendant who cannot afford to pay a private lawyer can be found more than a century ago. In Webb v. Baird, (6 Ind. 13), the Indiana Supreme Court in 1853 recognized a right to an attorney at public expense for an indigent person accused of crime, grounded in "the principles of a civilized society," not in constitutional or statutory law.

"It is not to be thought of in a civilized community for a moment that any citizen put in jeopardy of life or liberty should be debarred of counsel because he is too poor to employ such aid," the Indiana court wrote. "No court could be expected to respect itself to sit and hear such a trial. The defense of the poor in such cases is a duty which will at once be conceded as essential to the accused, to the court and to the public."

The Sixth Amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel in federal proceedings was well-established by statute early in the country's history, and was reaffirmed by the U.S. Supreme Court in 1938 in Johnson v. Zerbst. The Webb v. Baird decision, however, was the exception rather than the rule in the states. Well into the 20th century, most states relied only on the volunteer pro bono efforts of lawyers to provide defense for poor people accused of even the most serious crimes. While some private programs, such as the New York Legal Aid Society, were active as early as 1896 in providing counsel to needy immigrants, and the first public defender office began operations in Los Angeles in 1914, such services were non-existent outside of the largest cities.

The United States Supreme Court developed the Sixth Amendment right to counsel in state proceedings gradually and somewhat haltingly in the 20th century. In Powell v. Alabama, the famous "Scottsboro Case" from the Depression era, the Court held that counsel was required in all state capital proceedings. (Read the Court's key reasoning.)

Only a decade later, however, in Betts v. Brady, the Court declined to extend the Sixth Amendment right to counsel to state felony proceedings. It was not until 1963, twenty-one years after Betts, that the Court again addressed the issue of the right to counsel in state proceedings involving serious non-capital crimes. In a dramatic series of decisions, the Supreme Court firmly established the right to counsel in virtually all aspects of state criminal proceedings.

The most significant decision on the right to counsel in Supreme Court history was Gideon v. Wainwright, which overruled Betts v. Brady. The Court unanimously held that an indigent person accused of a serious crime was entitled to the appointment of defense counsel at state expense. (Read the Court's key reasoning.)

Twenty-two state attorneys general joined petitioner Clarence Earl Gideon in arguing that Sixth Amendment protection be extended to all defendants charged with felonies in state courts.

Four years later, with its decision in In re Gault, the Supreme Court built on the Gideon decision to extend to children the same rights as adults by providing counsel to the indigent child charged in juvenile delinquency proceedings. The right to counsel in trial courts was significantly expanded again when the Court, in Argersinger v. Hamlin, extended the right to counsel to all misdemeanor state proceedings where there is a potential loss of liberty.

The decisions in Gideon, Gault and Argersinger are the best known of the right-to-counsel cases in the Supreme Court, but they were part of a broader array of decisions rendered by the Court in the past three decades, all of which protect the right to counsel for people who cannot afford to hire a private lawyer. The Court recognized the low-income defendant's right to counsel at such critical stages of criminal proceedings as:

After conviction, the indigent defendant is constitutionally guaranteed the right to counsel in:

In addition, the right to counsel for indigent defendants often extends, under state or federal law or practice, to collateral attacks on a conviction as well as a range of what might be called " quasi-criminal" proceedings involving loss of liberty, such as mental competency and commitment proceedings, extradition, prison disciplinary proceedings, status hearings for juveniles, some family matters such as non-payment of court-ordered support or contempt proceedings, as well as child dependency, abuse and neglect situations.

Finally, in any criminal proceeding in which counsel appears, the defendant is entitled to counsel's effective assistance, under Strickland v. Washington, decided in 1984.

These diverse requirements under the federal Constitution, often supplemented by more stringent state standards, created enormous pressures on the lawyers who provided indigent defense. The mandate of the Gideon, Gault and Argersinger decisions, as well as the Supreme Court's requirement to provide counsel at all critical stages of a prosecution, meant that government would have to assume vastly increased costs for providing counsel to the poor. Policymakers began to think about more systematic ways to deliver constitutionally required defense services.

The first significant efforts to systematize and standardize the provision of indigent defense services occurred in the early 1970's. In 1973, the National Advisory Commission on Criminal Justice Standards and Goals (NAC) wrote a basic set of standards governing indigent defense systems. The next year, the U.S. Justice Department convened the National Study Commission on Defense Services, which issued its comprehensive Document Guidelines for Legal Defense Systems in the United States (msword, 96 Kb) in 1976. Today, a comprehensive web of standards at the national, state and local levels governs the provision of indigent defense across the country. In 2000, the U.S. Justice Department compiled all these standards in a single compendium.

But serious problems remain. As the Justice Department found, in its 2000 report (in pdf format), Improving Criminal Justice Systems Through Expanded Strategies and Innovative Collaborations:

Standards are frequently not implemented, contracts are often awarded to the lowest bidder without regard to the scope or quality of services, organizational structures are weak, workloads are high, and funding has not kept pace with other components of the criminal justice system. The effects can be severe, including legal representation of such low quality to amount to no representation at all, delays, overturned convictions, and convictions of the innocent. Ultimately, as Attorney General Janet Reno states, the lack of competent, vigorous legal representation for indigent defendants calls into question the legitimacy of criminal convictions and the integrity of the criminal justice system as a whole.

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