In this great country, it is a truth almost universally acknowledged that every poor accused person has the right to have court-appointed legal counsel. Some may be surprised to learn that this right was only recently acquired.
Back in 1791 the Sixth Amendment to the Constitution established the right of an accused person in criminal proceedings "to have the Assistance of Counsel for his defense." But for more than 140 years, the Sixth Amendment was interpreted to mean that anyone who wished counsel and was able to pay for it could have counsel. Our modern understanding of the right to counsel came from landmark Supreme Court decisions in the 20th century, beginning with Powell v Alabama (1932). In that case, the court set aside the conviction for rape of eight illiterate, indigent young black men (the "Scottsboro boys") sentenced to death in a hasty trial carried out without recourse to legal counsel. The court ruled that it was the state's responsibility to see that the defendants had adequate legal counsel.
In 1963 the Supreme Court held in Gideon v Wainwright "that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." In practice, the decision meant that accused persons in state criminal proceedings acquired the right to counsel. Arger-singer v Hamlin (1972) extended the right to felony and criminal cases if conviction carried a sentence of imprisonment. In a further refinement of indigent defendants' rights, Justice Hugo Black incorporated the quote at the beginning of this panel in the Supreme Court's decision in Griffin v Illinois (1964), which ordered the state of Illinois to pay for indigent Griffin's trial transcript so he could file an appeal.
How many people are now represented by court-appointed attorneys? The chart above shows statistics from the country's 75 largest counties. In 1996, 82% of defendants charged with a violent crime in those counties had court-appointed counsel. According to Adkins, that percentage can increase to "as high as 90% in some jurisdictions in response to the war on crime and crackdown on drugs in recent government administrations."
The states have been left to their own devices to formulate systems for providing counsel for indigent defendants and to pay for such counsel. Three types of systems have emerged: Public defender programs (public or private nonprofit organizations with salaried staffs); assigned counsel systems (in which courts appoint willing private attorneys from a list of those available); and contract attorneys (who agree with governmental units to provide services for a specified period and fee). According to the National Prosecutors Survey of the nation's 75 largest counties, in 1992, 41% of jurisdictions used a combination of methods. Public defenders were used exclusively in 28% of jurisdictions and 23% of jurisdictions used the assigned counsel system exclusively.
Providing legal counsel to the poor is a noble concept. How does it play out in the real world? Our next panel looks at funding for indigent defense services.
Sources: Chart: Harlow, Caroline Wolf, Ph.D., "Defense Counsel in Criminal Cases," Bureau of Justice Statistics Special Report, NCJ 179023, November 2000. Steven K. Smith et al., "Indigent Defense," BJS Selected Findings, NCJ-158909, February 1996. "The Greatest Trials of All Time: The Scottsboro Boys," Court TV Online, http://www.courttv.com/greatesttrials/scottsboro/trials.html.
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