The Right of Assistance of Counsel
Among the landmark cases establishing the applicability of constitutional laws, none have been more important than the many cases dealing with the right to assistance of counsel. This important clause, provided in the Sixth Amendment, assures that no one will find himself alone in a court of law against overwhelming odds.
The guarantees of this provision stem from the basic tenets of our legal and judicial system. The American system is an adversary system. This means that through the battling of two opposing sides in open court, the whole story will be uncovered, the truth will be known and justice will be served. The right of all persons faced with the prospect of losing their liberty to the assistance of counsel is obvious. Such has, however, not always been the case. The development of this right, especially for those unable to afford an attorney, has only recently taken place.
Historically, the right to counsel has meant the right to retained counsel; that is, if the defendant could afford a lawyer, he had the right to use one. The poor defendant was denied this right. In early America, some states showed a greater concern for the impoverished defendant than did the federal government. These states provided for the appointment of counsel in cases punishable by death, with some states going so far as to provide counsel on all felony charges.
This was not sufficient protection, however, because many states were never required to do this. Even when they provided for the appointment of attorneys in the cases, judges would often fail to inform defendants of this right or would all too readily accept a waiver of the right.
Significant changes began to occur in the 1940s, when the U. S. Supreme Court concluded that the Constitution required an offer of free counsel to the poor in all felony cases in federal courts. If a defendant waived this right, the waiver had to be intelligent.
Further improvements came in the 1960s. A landmark case, Gideon v. Wainwright, led to a Supreme Court ruling that the states could no longer use a different standard than the federal government in the appointment of counsel to represent poor defendants. It decreed that free counsel must be appointed to represent all poor persons who were accused of a felony. By this ruling, the court established the unfairness of allowing an unrepresented defendant to face the combined forces of the state prosecutor's office and police investigators without any assistance.
This was not the end of the development of this important constitutional right. In 1972, the Supreme Court declared that whenever an accused is in danger of losing his liberty, he must be given an appointed attorney. This meant that even misdemeanor cases, where the possibility of imprisonment loomed, also fell under the provisions of the right to assistance of counsel.
Sadly, the fact that the Supreme Court had spoken did not solve the problems. Before 1964 there was no established method for the payment of appointed counsel for services or for the appointment of this counsel. As a result, some courts appointed very young, inexperienced or disinterested attorneys in the expectation they would plead their clients guilty. Today, however, there are many systems throughout the nation -- such as the public defender system or voluntary efforts -- that are shouldering the burden.
With the development of this right, attorneys have become more aware of their ethical obligations to provide services to poor defendants at little or no charge. The acceptance of the notion of equal rights for all, regardless of income status, is as much a basis of American law as this particular Sixth Amendment right.