Right to Counsel (VI)

English and American Origins

During the seventeenth and early eighteenth centuries in England, criminal trials in the common-law courts were brief, informal affairs in which victims, their relatives, or, occasionally, hired attorneys prosecuted charges against defendants, who were assumed to be guilty unless they could successfully refute the charges. That was difficult, as defendants typically were incarcerated until trial, not informed of formal charges or evidence against them, and unable to compel the testimony of witnesses. A major additional handicap was that persons accused of felonies and treason, for which death and forfeiture of estate were a likely penalty, were forbidden to employ counsel to assist them. It has been suggested that trials were considered sufficiently simple and straightforward for laymen to handle, and that judges were deemed capable of protecting the interests of all parties, but these explanations do not square with the right of persons accused of trespasses or misdemeanors (including lesser political offenses) to retain counsel. This curious disparity is best explained by the conclusion that, especially in the revolutionary seventeenth century, the government placed such a premium on security that it was unwilling to grant any significant advantage in the trial contest to those offenders who presented a serious threat to the authority of the regime.

With the restoration of political stability after the Glorious Revolution of 1688, and in the wake of a series of false treason charges prosecuted by trained attorneys for the Crown, Parliament passed the Treason Act of 1695, granting defendants the right to retain counsel in treason cases and requiring courts to provide counsel if requested. This first legislative modification of the common-law rule of counsel was followed by a gradual change in judicial practice in felony cases, which were increasingly prosecuted by aggressive attorneys employed by the state, or sometimes by private parties. To redress the resulting imbalance in expertise, judges began to allow the appearance of defense counsel, a practice that had become common by the end of the eighteenth century. The role as well as the appearance of defense counsel, however, remained at the discretion of trial judges. There was considerable variation from one case and court to another, but counsel were typically confined to examining and cross-examining witnesses and arguing questions of law while prohibited from addressing the jury and arguing or interpreting matters of fact. The traditional expectation that innocent defendants could give a good account of themselves persisted, and defendants were thus called upon to speak for themselves on these matters.

The gradual transition from common-law practice to statutorily enacted right continued until 1836, when an act of Parliament established the right RIGHT TO COUNSEL 1348 to the full assistance of counsel for all criminal defendants. The final step was taken in 1903, when Parliament established the right of indigent defendants to appointed counsel.

During the seventeenth century, trial procedures in the American colonies were essentially the same as in England. Few trained lawyers were available, so private parties typically prosecuted those who had offended against them, and the accused defended themselves. Procedures were formalized in America earlier than in England, however, and by the turn of the eighteenth century every colony was represented by professionally trained public prosecutors in criminal cases. With lawyers more numerous and the status of the profession enhanced as the need to protect the rights of colonists against the oppression of the British authorities grew clearer, defendants were increasingly represented by counsel. Rhode Island granted a statutory right to retained counsel in 1660, Delaware, Pennsylvania, and South Carolina enacted that right for serious cases early in the eighteenth century, and after independence, North Carolina, Virginia, Massachusetts, and New Hampshire enacted some form of protection. Meanwhile, Delaware and Pennsylvania created a constitutional right to counsel in their charters of 1701, and after independence Delaware, New Jersey, Maryland, New York, Massachusetts, and New Hampshire adopted constitutional guarantees of counsel. By the time of the adoption of the Bill of Rights, therefore, eleven states recognized a general right to counsel by statute, constitutional provision, or both; Connecticut abided by a deep common law tradition to the same effect; and several states made at least some provision for appointment of defense counsel by the state. Only Georgia continued to adhere to the discretionary common-law practice of the British—a defect that would be remedied by the adoption of a constitution in 1798.

Throughout the process in which the First Congress proposed, and the states ratified, constitutional amendments that would become the Bill of Rights in 1791, James Madison’s language with respect to counsel—‘‘in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence’’—remained unchanged and went undiscussed. Since the states had already come to the conclusion that the right was fundamental (Georgia did not participate in ratification), such consensus without debate—while disappointing to those seeking guidance from the intent of the framers—is not surprising. Two caveats must, however, be noted. First, because the Federal Crimes Act of 1790 provided for the appointment of counsel for persons accused of treason and other capital offenses, it is clear that the framers of the Sixth Amendment saw it as an affirmation of the right to retain counsel but not as a guarantee of the assistance of counsel regardless of ability to pay. Over the next century and a half, federal courts increasingly did provide counsel in felony cases, but there was no federal statutory or constitutional guarantee of representation for the indigent. Second, as the decision in Barron v. Baltimore (1833) would make clear, the Bill of Rights bound only the federal government, and the Sixth Amendment right to counsel would not apply to the states—where most criminal prosecutions occur—until 1963. State constitutional provisions did not guarantee representation of the indigent, either, although legislation and judicial practice did so to some extent. In both state and federal jurisdictions, then, the right to retain counsel had been secured by the end of the 1790s, but the scope of the right and the availability of counsel for indigents would vary among jurisdictions until well into the twentieth century.

Development of the Modern Right to Counsel at Trial

The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, contains the prohibition that ‘‘[n]o State shall ... deprive any person of life, liberty, or property, without due process of law,’’ and litigants soon began to argue that rights protected against federal invasion by the Bill of Rights were a part of due process of law and thus now protected against state invasion as well. The Supreme Court rejected this interpretation in Hurtado v. California (1884) but gradually relented and, over the next nine decades, incorporated most provisions of the Bill of Rights into the due process clause and thus applied them to the states, including the right to counsel in 1963. The groundwork for that result was laid much earlier, however, for in criminal cases in the 1920s the Court began to hold the states to a more rigorous standard of due process as fundamental fairness, independent of specific provisions of the Bill of Rights.

The elaboration of the modern right to counsel by the Supreme Court began in Powell v. Alabama (1932), an appeal from the notorious Scottsboro trials in which nine young and severely disadvantaged black men were falsely convicted of the rape of white women and sentenced to death by all-white juries in the old rural South. Disregarding other serious procedural shortcomings, the Court focused on the facts that the defendants were incapable of defending themselves, had no realistic opportunity or ability to retain an attorney, and were represented by court-appointed counsel who did not meet them until the morning of the trial and, without preparation, merely went through the motions of conducting a defense. In view of the circumstances—defendants who were ignorant and in some cases illiterate, imprisoned in a hostile environment far from home and out of touch with family and friends—the Court overturned the convictions because it found violations of due process in both the trial judge’s failure to afford the defendants a reasonable opportunity to secure counsel and, assuming their inability to do so, in his failure to make an effective appointment of counsel. Due process includes the right to a hearing, the Court ruled, and the right to a hearing includes the right to be assisted by counsel.

The issue of indigent defendants’ constitutional right to counsel had thus come to the fore, and it would be handled differently for state and federal trials. The Powell opinion asserted that

even the intelligent and educated layman has small and sometimes no skill in the science of law.... He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

The logical corollary of that interpretation is that every criminal defendant is entitled to counsel, regardless of circumstances, and in Johnson v. Zerbst (1938) the Court held that the Sixth Amendment requires federal courts to appoint counsel for defendants unable to obtain it unless they intelligently waive that right.

The holding in Powell, as opposed to its rhetoric, led, however, to a more complex and torturous course of constitutional development in state cases. Powell did not incorporate the Sixth Amendment right to counsel and apply it to the states, but rather held that the lack of counsel could amount to a denial of due process (as in that case, where defendants facing capital charges were unable to defend themselves or retain counsel). The question then became, under what circumstances was due process denied by the absence of counsel? The Court was soon asked to hold that the lack of counsel was per se a denial of due process, but in Betts v. Brady (1942) it declined to do so, on the basis of an exhaustive review of colonial and state history and practice indicating that provision of counsel was regarded as a matter of policy and not as an essential component of a fair trial. This result was compatible with Zerbst, the Court argued, because due process ‘‘formulates a concept less rigid and more fluid’’ than the ‘‘specific guarantees found in the Sixth Amendment,’’ one which avoids the ‘‘danger of ... formulating the guarantee into a set of hard and fast rules, the application of which in a given case may be to ignore the qualifying factors therein disclosed.’’

Betts thus established a subjective standard for the right to counsel in state cases: due process required the appointment of counsel for indigent defendants only when the circumstances of the offense, the defendant, or the law were such that a trial in the absence of counsel would be fundamentally unfair—the special circumstances rule. The justices quickly agreed that a capital offense was such a special circumstance, but in a series of cases over the next two decades they were unable to formulate a coherent standard of special circumstances or to achieve a consistent line of decisions. Newly appointed justices rejected the Betts approach, and the Court agreed to reconsider that decision in a case from Florida, Gideon v. Wainwright (1963).

The cases were remarkably similar, involving unschooled men defending themselves against uncomplicated charges of theft, but Gideon’s was far more dramatic, as his petition was printed in pencil on prison stationery and filed in forma pauperis (in the manner of a pauper, for which normal fees and technical standards are waived). Prominent Washington attorney (and later Supreme Court Justice) Abe Fortas, assigned by the Court to represent Gideon, made two principal arguments: that representation by counsel is always essential for a fair trial, and that the special circumstances rule in practice had led to error, confusion, unfairness, and frequent reversals and retrials that burdened both states and defendants. A unanimous Supreme Court overturned Gideon’s conviction, overruled Betts v. Brady, and incorporated the Sixth Amendment right to counsel into the due process clause of the Fourteenth Amendment, thereby applying it to the states. For indigent defendants in state courts, the decision meant that they had the same right to a lawyer as defendants in federal court. For the states, it meant no great doctrinal change, as most had already made provision for counsel for the indigent (and of twenty-four states filing amicus curiae briefs in the case, all but two had supported Gideon). Many states did upgrade their defense services, however. For Clarence Earl Gideon, the decision meant a new trial in Florida, in which he was acquitted with the aid of W. Fred Turner, a competent local attorney.

On the same day that it decided Gideon, the Court also held in Douglas v. California (1963) that the equal protection and due process clauses require that counsel be supplied to indigents for appeals of right (appeals to which all convicted persons are entitled). Eleven years later, however, it held in Ross v. Moffitt (1974) that there is no constitutional right to appointed counsel for further appeals that are heard at the discretion of appellate courts.

A final component of the evolution of the right to counsel at trial concerned the issue of petty offenses, which reflected a more fundamental issue of federalism. Supreme Court decisions regulating state criminal justice procedures, especially in the era of the Warren Court, occurred in a context of similar regulation in the fields of desegregation, separation of church and state, and legislative apportionment that engendered significant political and philosophical opposition to perceived federal encroachment on state prerogatives. The Gideon decision, which applied to felonies, did not exacerbate that sentiment because states had generally adopted the same policy of their own accord, but the extension of the right to appointed counsel to persons facing lesser offenses would entail a much greater policy shift and a much larger administrative and financial burden.

The Court confronted this issue in Argersinger v. Hamlin (1972) and devised a formula that struck a balance between concern for the rights of the accused and deference to state policy making: ‘‘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 his trial.’’ States may not impose a sentence of imprisonment on an indigent defendant for whom counsel was not supplied, but they may choose where to draw the line between offenses for which they will supply counsel and those for which they will not. In Scott v. Illinois (1979), the Court affirmed that counsel is required only when imprisonment is actually imposed, not when it is authorized but not imposed.

The Gideon, Douglas, and Argersinger decisions mark the major boundaries of the process by which the Sixth Amendment right to the assistance of counsel was extended to defendants in state as well as federal cases, regardless of ability to pay, for trials and appeals of right. In the same period, In re Gault (1967) held that minors facing juvenile delinquency proceedings that may result in confinement have an equivalent right to counsel as a matter of due process (although they commonly waive it in practice). It is also important to note that in Miranda v. Arizona (1966), the Supreme Court created a limited Fifth Amendment right to counsel that applies in some circumstances where the Sixth Amendment right does not, for it may be invoked by any suspect taken into custody and facing interrogation, as a means of protecting the privilege against compelled self-incrimination (though once again, the right is waived by a large majority of suspects). Further issues of the applicability and scope of the contemporary Sixth Amendment right to counsel are explored in an article on that topic.

JOHN B. TAYLOR

References and Further Reading

• Beaney, William M. The Right to Counsel in American Courts. Ann Arbor: University of Michigan Press, 1955.
• Heller, Francis. The Sixth Amendment to the Constitution of the United States. New York: Greenwood Press, [1951] 1969.
• Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1964.
• Taylor, John B. Right to Counsel and Privilege against Self- Incrimination: Rights and Liberties under the Law. Santa Barbara, Calif.: ABC-Clio Press, 2004.
• Tomkovicz, James J. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, CT: Greenwood Press, 2002.

Cases and Statutes Cited

• Argersinger v. Hamlin, 407 U.S. 25 (1972)
• Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)
• Betts v. Brady, 316 U.S. 455 (1942)
• Douglas v. California, 372 U.S. 353 (1963)
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Hurtado v. California, 110 U.S. 516 (1884)
• In re Gault, 387 U.S. 1 (1967)
• Johnson v. Zerbst, 304 U.S. 458 (1938)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• Powell v. Alabama, 287 U.S. 45 (1932)
• Ross v. Moffitt, 417 U.S. 600 (1974)
• Scott v. Illinois, 440 U.S. 367 (1979)

See also Right to Counsel