Academic journal article St. Thomas Law Review

Sixth Amendment Right to Counsel: Broaden the Scope, Decriminalize, and Ensure Indigents a Fair Chance in Court and in Life

Academic journal article St. Thomas Law Review

Sixth Amendment Right to Counsel: Broaden the Scope, Decriminalize, and Ensure Indigents a Fair Chance in Court and in Life

Article excerpt


In the landmark case of Gideon v. Wainwright, (1) the United States Supreme Court stated that "[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." (2) Since then, barely fifty years ago, the Court has added a surprising exception to Gideon's finding: the right to counsel is not fundamental to a person too poor to hire a lawyer in cases where the prosecution does not seek a penal sanction, whether it is authorized or not. Amazingly, the Court has determined that the fundamental fairness of a trial depends on the post-trial sanction to be imposed. If this is the case, then it would have been easier for the Court in Gideon to state that the right to counsel is fundamental only in retrospect when a defendant is in a jail cell, rather than finding the right fundamental generally to the proceedings. Thus, the right to counsel is currently based on the possible result of trial, rather than focused on the fairness of the entire criminal process.

The Supreme Court cases founded upon Gideon have all discussed the fundamental nature of the right to counsel generally, whether the discussion was made in the text of the majority opinion, concurrence, or dissent. However, the Court has failed to push over the fence and lift the unnecessarily drawn line from Scott's "actual imprisonment" standard, and has therefore refused to extend the right to counsel to its Sixth Amendment textual origin: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (3) Thus, the Supreme Court has erroneously hidden behind the dreary cloak of imprisonment to deny the right to counsel to indigents who do not face a prison sentence, but who are ultimately convicted.

Part I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, the solution proposes that state legislatures should adopt a process of decriminalization to alleviate the potential administrative burden of broadening the right to counsel.



In England, the right to counsel in criminal cases was very different from what it is in the United States today. Originally, an individual accused of a misdemeanor was entitled to, and required to have, full assistance of counsel, whereas an individual accused of a felony or treason was not entitled to the same right. (4) It is difficult to grasp how a defendant facing a comparatively light punishment was permitted assistance of counsel, but one whose life was on the line for a felony charge was not. (5) The logic, arguably, stemmed from the notion that an assessment of guilt as to issues of fact in felony cases would be objectively obvious and thus the judge would be able to act as counsel for the defendant. (6) No matter what crime was charged, a defendant was always permitted counsel as to questions of law, rather than fact. (7) This rule, however, was considered outrageous and was greatly criticized by English statesmen and lawyers. (8) It was not until 1836 that the right to have the assistance of counsel was permitted to all defendants, whether civil, misdemeanor, felony, or treason. (9)

At the time of the establishment of the colonies, approximately twelve of the original colonies had rejected the rule of the English common law and recognized the right to counsel in all criminal prosecutions, except in instances where the right to counsel was limited to capital offenses or what were considered to be serious crimes. …

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