Washington Lawyer - November/December 2021 - 22

FEATURE
before a court official when an individual's liberty is first subject to
restriction.
Today, the Sixth Amendment right to counsel is more encompassing
than it's been in American history, but advocates for improving indigent
legal defense systems say " right to counsel " has become a fight for
" effective assistance of counsel. " There remain varied state and local
approaches to indigent defense, sometimes provided through public
defenders, court-assigned or selected panels of private lawyers, or a
combination of both. Limited funding, control by the judiciary, and lack
of oversight also produce indigent defense systems in some states that
suffer from compromised independence of defense counsel, case overloads,
financial conflicts of interest, and wide variability in professional
standards of representation.
Nevertheless, Gideon's impact remains strong. " A significant number
of people charged with felonies at the federal and state levels are
represented by public defenders, " says Lucius Outlaw III, formerly with
Maryland's Office of the Federal Public Defender, now a Howard
University School of Law professor and supervising attorney of its
Criminal Justice Clinic.
Correcting a " common misperception that public defenders represent
only the poorest " defendants, Outlaw says his clients included doctors,
elected officials, and other professionals who " made a good living, but
federal prosecution can be a very expensive affair, running into hundreds
of thousands of dollars. " To help level the playing field, Maryland's federal
public defender service authorized under the CJA may be available for
eligible federal defendants following financial qualification and judicial
approval.
Today, Outlaw says new concerns are overtaking access to counsel issues,
including outsourced data collection practices that test the limits of warrantless
searches and seizures; inherent conflicts under Brady v. Maryland
(1963), which obligates prosecutors to disclose exculpatory evidence; and
troubling long-term shifts in discretion from judges to prosecutors.
" It's become a plea-bargaining system driven by prosecutors' nearly
unilateral charging decisions and mandatory minimum sentences, "
Outlaw says. " Prosecutors regularly bring multiple charges,
some with mandatory minimums, effectively pressuring
defendants to accept plea deals rather than risk longer
sentences by exercising their Sixth Amendment right
to trial. "
Outlaw says " vigilance " is critical to prevent hard-won
Supreme Court precedents from " slowly eroding as efficiency,
budgets, and case volume strain court and
defender systems. " At issue are state and local budgets,
and " when faced with criminal justice or education,
people choose [to fund] education, " Outlaw says.
We learn much by taking stock
of our progress and unfinished
work. From the touchstone of
the Sixth Amendment to Gideon,
Gault, and the growth of civil
legal aid, we've made strides
toward the promise of access to
counsel and justice for more
Americans than at any time in
our history.
JUSTICE FOR JUVENILES
The Sixth Amendment right to counsel for juveniles also
has roots in the 1960s, developing after Gideon along
similar lines. Until then, it had been common for juvenile
courts and custodial agencies to make life-changing decisions
for youth informally, such as by levying harsh penalties,
including loss of liberty for longer periods than adults;
changing conditions or location of juveniles' detention;
extending their commitment periods; or denying support
benefits without due process procedures and legal
representation.
By the mid-1960s, the Supreme Court recognized that state
juvenile justice systems had power to make decisions with
lifelong consequences for youth, and that constitutional
due process rights accorded to adults, including the right
to a fair hearing and appointed counsel, also apply to
critical stages of juvenile proceedings.
In 1966 the Court ruled that juveniles have a constitutional
due process right to a formal hearing before juvenile state
courts transfer their cases to the adult system (Kent v.
United States, 1966). One year later, the Court held that
indigent juveniles had a Sixth Amendment right to
counsel in all phases of state delinquency proceedings
that could result in involuntary confinement (In re Gault,
1967).
22 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2021
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Washington Lawyer - November/December 2021

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