Right to Counsel

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the United States Constitution:  “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”    This means that any person accused of criminal intent has the right to have an attorney guide his defense.  If he cannot afford an attorney, one will be appointed to assist.

                W. Cleon Skousen explained, “Provision is made in each judicial district to have certain attorneys available (often the younger, less experienced ones) who can be appointed by the court to assist the accused.  Of course, if the case is technical and the offense is serious, the court will appoint one of the more experienced attorneys in the area to defend him.

                “It is indicative of the maturity of the American judicial system that in recent years there has been an increasing emphasis on the necessity of having the assistance of counsel both before and during the trial.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 709.)

                Don Dripps of The Heritage Foundation explained, “By affording a right to assistance of counsel, the Founders specifically meant to reject the English practice of prohibiting felony defendants from appearing through counsel except upon debatable points of law that arose during trial….

                “History does not speak so clearly to the related but distinct question of whether a defendant who is too poor to retain private counsel has the right to a lawyer paid at public expense.  Self-representation appears to have been common at the time of the Founding, but representation by professional lawyers became more frequent during the first half of the nineteenth century….

                “While there can be no doubt that the Framers valued the right to counsel, their primary purpose lay in removing legal obstacles to representation by lawyers privately retained by defendants who could afford lawyers.  Not until 1938 did the Supreme Court hold that the Sixth Amendment required court-appointed counsel for defendants too poor to afford private counsel, or a knowing and intelligent waiver of court-appointed counsel by the accused….  The Sixth Amendment, however, applied only in federal cases.  As late as 1963, several poorer states, all in the South, refused to provide appointed counsel for all indigent felony defendants, many, if not most, of whom were black.  Prior to 1963, the Supreme Court had addressed the question of counsel for the indigent accused persons in state cases under the Due Process Clause of the Fourteenth Amendment, rather than under the Sixth Amendment, which deals specifically with the right to counsel.  In the state cases, beginning with Powell v. State of Alabama in 1932, the Court read due process to require appointed counsel in capital cases, and in felony cases when they presented special needs for legal advice.

                “The modern law interpreting the Right-to-Counsel Clause really begins with the 1963 decision in Gideon v. Wainwright, holding that the Fourteenth Amendment incorporates the right-to-counsel guarantee of the Sixth Amendment, making it applicable in state as well as federal cases….”  (See The Heritage Guide to the Constitution, p. 357.)