Washington Lawyer - November/December 2021 - 21

FEATURE
A
sk Americans what " access to justice " means
and their answers reflect a diversity of philosophies
and values that have co-existed since
ancient times. Our country has lived with
wide-ranging differences in concepts of justice and
access to it since its founding. America's proliferation
of states, territories, and federal and local courts -
themselves divided into criminal and civil systems -
all have influenced what these ideals mean through
legislation as well as judicial and administrative
decisions. There isn't a ready answer.
But while a single definition is elusive, another American principle -
equality for all - offers common ground. As Americans in each era in
our history have redefined the meaning of access to justice, a recurring
theme is that a lawyer's help can make all the difference between
winning or losing, freedom or imprisonment, even life or death. How
well we live up to the ideal of equal access to justice can be gauged
by our historic journey toward greater access to legal assistance for all
Americans.
UNLOCKING THE SIXTH AMENDMENT
Americans' right to legal " assistance " when they face prosecution by
the most formidable power of all - the state - is guaranteed in the
Constitution. Ratified in 1791, the Sixth Amendment to the Constitution
specifically guarantees Americans facing criminal proceedings the right
to know the charges against them, compel adverse witnesses to appear
and to confront them, receive a speedy and public trial by an impartial
jury, and have the " Assistance of Counsel. "
By incorporating a right to counsel in the Sixth Amendment, states
sought to ensure that those accused of crimes could not be denied a
lawyer. Under prevailing English law, those accused of a felony or treason
often were denied the aid of counsel; courts considered it their duty to
ensure the defendant received a fair trial. The Sixth Amendment did not,
however, define the scope of the right to counsel, and successive generations
have interpreted it to meet their evolving values of justice and
what access to it should mean.
One early, major milestone in expanding the scope of access to counsel
was the foundation laid by the adoption of the 14th Amendment in
1868. The amendment's due process protections prohibiting states from
abridging " the privileges or immunities of citizens of the United States "
or depriving them of " life, liberty, or property, without due process of
law " were the keys to unlocking the Sixth Amendment's full promise. But
two more generations passed before the U.S. Supreme Court began to
leverage the 14th Amendment's due process protections to expand the
Sixth Amendment right to counsel.
Coinciding with other post-Civil War amendments, access-to-counsel
initiatives gained momentum in the second half of the 19th century. To
supplement the legal profession's customary, but discretionary, duty to
represent the poor through unpaid court-appointed and pro bono
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representation, states began to enact legislation providing for limited
compensation to court-appointed counsel. As state- and county-funded
professional prosecutor offices spread and defendants' need for representation
grew, initiatives gained steam for equivalent public defender
systems. Los Angeles County opened the first public defender office in
1913, and after years of controversy over the model itself, most states
today have adopted public defender systems.
The Supreme Court had its first opportunity to consider the Sixth
Amendment right to assistance of counsel in light of 14th Amendment
due process protections in its 1932 decision in Powell v. Alabama. Re -
gardless of ability to pay, the Court ruled that Americans facing capital
punishment under state law have a Sixth Amendment right to counsel.
Johnson v. Zerbst extended that right in 1938 to defendants facing any
federal criminal charge. The 1964 Criminal Justice Act (CJA), which authorized
districts to establish federal public defender offices, was a milestone
in providing legal services for those who are financially unable to
pay for their defense in federal cases.
GIDEON & BEYOND: BROADER RIGHT TO COUNSEL
A seismic shift in Americans' right to legal assistance came in 1963 with
Gideon v. Wainwright, in which the Supreme Court expressly overruled
its 1942 decision in Betts v. Brady that had permitted states to decide
when to provide Sixth Amendment assistance of counsel to indigent
defendants in non-capital felony cases. The Court held that the Sixth
Amendment required states to ensure due process through a " fair
hearing " in felony cases, even when defendants face only prison time.
The Court determined that assistance of counsel is necessary for a fair
hearing, and if Americans facing imprisonment could not afford a lawyer,
the state had an obligation to provide one.
Gideon sparked state responses that ran the gamut from revamping
and funding indigent defense programs to obliging nods toward Gideon
while taking only perfunctory actions that did not provide real access
to effective legal help. With additional milestones dependent in part on
incremental, case-by-case Supreme Court rulings based on specific facts
and cases, the Sixth Amendment's right to counsel has continued to
evolve over time.
By the early 1970s, the Court had ruled that states must provide counsel
for low-level state offenses that could result in only six months in jail
(Duncan v. Louisiana, 1968) and for all misdemeanors subject to jail sentences
(Argersinger v. Hamlin, 1972). Later the Court extended the right to
counsel in cases involving suspended sentences, where the offender
faces imprisonment at a later date only if he violates probation (Alabama
v. Shelton, 2002).
As the Sixth Amendment right to counsel expanded, state and local
budgets felt the strain, and efforts to economize on publicly funded
counsel spawned more diffuse and subtle issues. The Supreme Court has
continued to take aim at routine state justice system practices that effectively
postpone or limit the points at which detained indigent suspects
receive their right to counsel.
In Rothgery v. Gillespie County (2008), the Court found that extended state
pretrial processes did not justify a delay in making counsel available to a
detained suspect. Rothgery reinforced the principles laid down in Gideon
and its progeny, holding that the " attachment " of the right to counsel
occurs at all " critical stages " of a case, including at initial appearance
NOVEMBER/DECEMBER 2021
* WASHINGTON LAWYER 21
Washington Lawyer - November/December 2021

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