The Right to Counsel in America Today

The danger of government wrongly taking a person’s liberty led the United States Supreme Court in 1963 to unanimously declare it an “obvious truth” that an indigent person cannot receive a fair trial against the “machinery” of law enforcement unless a lawyer is provided to him at no cost. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries,” the Court announced in Gideon v. Wainwright, “but it is in ours.” Since Gideon, all states have the responsibility to provide an attorney to every person of limited means who faces the possible loss of their liberty at the hands of the criminal justice system.

Yet over fifty years later, all across America our courts are failing to uphold this constitutional right to counsel. The Sixth Amendment right to counsel is an individual right, held by each and every defendant. It does not matter if a government provides effective representation to the first co-defendant, if not to the second; or to people charged with felony offenses, if not to those charged with misdemeanors; or to those charged in certain courts, if not to those charged in other courts. It does not matter even if government generally provides adequate counsel to most people. If indigent defense services are structured in a way that actually deny counsel to any defendants, or constructively give the accused a lawyer in name only because the lawyer has too many cases or operates under too many financial conflicts to be effective, the system itself is constitutionally deficient.

Unfortunately, this is an apt description of the right to counsel in our country in the 21st century. As the U.S. Department of Justice (DOJ) has said on numerous occasions, right to counsel services in America “exist in a state of crisis.” (See here, here, here, here, here, and here.) The systems, or often lack of systems, that states use to provide the constitutional right to an attorney to poor people are described by the DOJ as “inadequate,” “broken,” and “unjust,” with “devastating” consequences both for the defendant and for society as a whole. The situation is “unacceptable,” “unconscionable” “morally untenable,” “economically unsustainable,” and “unworthy of a legal system that stands as an example to all the world.”

The US DOJ’s words are justified. First, the full breadth and depth of the problem is unknown, because there is no governmental body, academic or research institution, or organization that can accurately say whether and how the right to counsel is being provided to every indigent defendant in every courtroom. Second, the manner in which the right to counsel is provided, or denied, to indigent defendants varies dramatically from state to state, and often from county to county or even courtroom to courtroom within a given state. Third, in those jurisdictions and courts that we do have current accurate information about, indigent defendants in some are outright denied the right to counsel, while in others the poor are frequently provided an attorney who is not independent of the courts and prosecution, who does not have the time and resources and skills to adequately represent them, who has too many cases and operates under financial conflicts that prevent allegiance to the legal needs of the defendant, or all of the above.

Lack of Information

The scope of the problem is massive. Setting aside entirely the federal justice system, our state-level criminal justice system spans the courts of 50 states, made up of 3,033 organized counties or county-equivalents, and within those counties are nearly innumerable municipalities. The right to counsel must be carried out in the courts of all of these disparate governments. While more is known about the provision of the right to counsel in some places than in others, more than half a century after the Gideon decision was handed down, there is no governmental body, academic or research institution, or organization that can accurately say whether and how the right to counsel is being provided to every indigent defendant in every courtroom.

Lack of Accountability and Oversight

Every jurisdiction has unique court structures and cultures, geographic expanses and population centers, and criminal procedures, law, and rules. As a result of all of these differences among and even within jurisdictions, the manner in which the right to counsel is provided, or denied, varies dramatically from courtroom to courtroom. Some states have put in place statewide systems that are responsible for providing an effective lawyer to every indigent defendant in every courtroom who is facing the potential of a jail sentence. But many states have delegated the responsibility for providing the right to counsel to their counties and municipalities, or often directly to the judges who preside over the very cases in which the defendants are charged. A significant number of states have a hybrid sort of structure where the state is responsible for some aspects of the right to counsel but localities are responsible for other aspects. Regardless of the structure a state uses, few state governments gather enough information and exercise enough oversight to be able to truly say whether they are fulfilling their Fourteenth Amendment obligation to provide the effective Sixth Amendment right to counsel in all of their courtrooms. They are not truly “systems” – lacking clear structure, oversight, and accountability, they are better described as “non-systems.”

The Actual and Constructive Denial of the Right to Counsel

A state’s duty is to ensure that every indigent person who is facing the possibility of time in jail receives a lawyer to effectively represent them at every critical stage of their case. We break this down into smaller pieces to identify the ways states are failing in this obligation.

          Actual Denial of Counsel

In many courts, poor people are actually denied their right to counsel – meaning a judge literally refuses to appoint counsel to represent them. This happens in three primary ways.

(1) Despite the fact that any person who is deprived of their liberty or threatened with its deprivation is entitled to counsel, judges sometimes refuse to appoint a lawyer to represent people who the judges do not expect to sentence to jail. This happens most often in misdemeanor cases and was the subject of a U.S. Senate Judiciary Committee hearing in 2015 and of a 6AC report.

(2) Many people who cannot afford to hire their own lawyer to represent them nonetheless are determined to be not poor enough to receive a publicly funded attorney. The poor are placed in a legal no man’s land when they have some small amount of cash on hand, but no private lawyer will agree to be hired for the little they can pay. There is no single set of rules followed in every courtroom to decide who is indigent and who is not. As a result, a defendant who receives appointed counsel in one courtroom can be denied the appointment of counsel in another courtroom or county or state, even when facing the prospect of jail in both. In some courts, judges refuse to appoint an attorney to represent any person who has been released from jail on bond, without regard to the amount of bond posted and without regard to whether the defendant made bond with his own resources or some other person posted the bond. An indigent defendant should not have to choose between being at liberty pre-trial and getting counsel. Nor should a defendant have to choose between buying food, medicine, and shelter and hiring an attorney.

(3) Indigent people who face jail as a penalty are entitled to have a lawyer representing them at every critical stage of their case. This begins at least at, if not before, the formal arraignment on the charge of prosecution. Yet in many jurisdictions across our land, judges refuse to appoint counsel for poor people until long after their arraignment – an event that can itself be months or even years after a person was arrested and at a time that it is no longer possible to find crucial witnesses and evidence.

          Constructive Denial of Counsel

The Sixth Amendment guarantees that every person has the right to counsel, and further that the lawyer provided to represent an indigent person must be effective. In United States v. Cronic, the Supreme Court explained that, if certain factors are present in a public defense system (or necessary factors are absent) at the outset of a case, then a court should presume that ineffective assistance of counsel will occur. In other words, a public defense system must provide lawyers, and it must provide those lawyers with the time, resources, and skills necessary to be effective. Hallmarks of a structurally sound indigent defense system under Cronic include the early appointment of qualified and trained attorneys with sufficient time and resources to provide competent representation under independent supervision. The absence of any of these factors can show that a system is presumptively providing ineffective assistance of counsel, resulting in what Cronic refers to as the “constructive” denial of counsel.

Far too many courts and public defense systems constructively deny the Sixth Amendment right to counsel to the poor. The ways in which they do so are relatedly far too numerous to fully explain here, so we provide just a few examples.

Every public defense system – whether operated by a state, a county, a municipality, or a judge — must engage individual lawyers to provide representation, and each of those lawyers is either a government employee (usually, but not always, working in a public defender office) or a private attorney (usually, but not always, either under contract to provide public defense representation or appointed to do so on a case-by-case basis). The Department of Justice, Bureau of Justice Statistics reports that there are only 957 public defender offices in the entire country. Though this may at first blush sound like a large number, this is an average of just over 19 offices for each of the 50 states, no matter how geographically large a state is or how many courts it has.

By far, most indigent defendants in the United States are represented by a private attorney who is under contract to a county administrator or judge – the same judge who presides over the defendant’s case — to handle an unlimited number of cases for a single flat fee. Contractual arrangements like this are rife with financial incentives for lawyers to do as little work as possible on behalf of the defendants they represent. Usually the lawyer has to pay for all necessary trial expenses (experts, investigators, etc.) for every defendant he represents out of this flat fee, meaning that the more time and resources a lawyer spends on his clients’ cases, the less pay he will take home. Compounding the problem, these lawyers often take into account what they must do to please the judge or county administrator in order to get the next contract, rather than solely advocating on a defendant’s behalf.

Regardless of whether a jurisdiction has a public defender office or uses contracts or an assigned counsel system to provide lawyers, most public defense systems generally require lawyers to represent so many clients at the same time that the lawyers have, on average, only a few hours or sometimes even just a few minutes to open a file, meet with the client, investigate the charges, search for witnesses and evidence, negotiate with prosecutors, and conduct hearings, a trial, or a guilty plea. As a result, fundamental legal tasks that are absolutely necessary in a defendant’s case often go undone. Simply put, no attorney can be effective when given a new felony case every day – weekends and holidays included — yet a caseload of 356 felony cases per attorney per year or more is the norm in far too many jurisdictions in this country.

Excessive caseloads lead to one of two results. Either there are inordinate delays, with many defendants waiting months in jail at taxpayer expense while others must miss work to attend court over and over again, or our courts become assembly lines to process poor people into jail or prison without bothering to sort out the guilty from the innocent. Neither is acceptable. When an innocent person sits behind bars pretrial or is wrongfully incarcerated because her attorney did not have the time, ability, or resources to do the job right, the real perpetrator remains on the streets to wreak havoc with public safety.


America’s failure to fulfill the right to counsel for the poor has far-reaching effects throughout our criminal justice systems and into our communities. Point to almost any criminal justice issue – wrongful convictions, debtors’ prisons, over-incarceration, non-violent offenders serving life sentences, etc. – and at root of the problem is the lack of true advocacy on behalf of people of insufficient means who are charged with crime. Just as a doctor who treats only the outward manifestation of an underlying ailment will fail to produce long-term wellness for a patient, the focus by any number of well-meaning advocacy groups on alleviating the myriad criminal justice problems plaguing our nation without concurrently reforming indigent defense services will fail to produce a healthy and just criminal justice system. Thus, when in August 2013 the U.S. Attorney General challenged criminal justice stakeholders, policymakers, and the general public at a meeting of the American Bar Association House of Delegates to “break free of a tired status quo” and “challenge that which is unjust” in America’s criminal justice systems, he was at heart asking for transformation in how we provide the poor with their constitutional right to counsel.