In the comments to this post, Tom McKenna submits that the Sixth Amendment does not require mandatory appointment of counsel for indigent defendants.
That "right" had to be invented by the Court by using that famous
refuge of activist judges, the 14th Amendment, which (unbeknownst to
its framers, who thought they were simply guaranteeing that whatever
procedures protected white citizens at law must also protect black
citizens) guarantees due process of law to state citizens. The 14th of
course has been used to "find" all kinds of hitherto unknown rights,
such as "privacy" (contraception/abortion) and sexual expression (sodomy
at least)
He then goes on to explain
the states can choose to vindicate this "right" by providing for
indigent defense in their own constitutions or statutes. It defies
common sense however, to suggest that the sixth amendment mandates
something that apparently no one (least of all its framers) imagined it
mandated until 1963.
The framers meant what they said and no
more… that you have a right to counsel and cannot be tried and
convicted if you want to have an attorney; the court cannot deny you
counsel. That is different than saying the court must provide you
counsel. Even the Supremes realized they could not twist the 6th
amendment to include an affirmative duty to provide counsel, so they
had to turn the last refuge of judicial scoundrels, "substantive due
process" under the 14th.
I am no Constitutional Law expert, so bear with me while I do an analysis of Gideon and the cases it relies on.
First, I think one must admit that the Constitution (via the 6th Amd.) does require appointment of counsel in Federal Court. This was held in Johnson v. Zerbst, 304 U.S. 458 (1938). The plain text also leads to this conclusion:
In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.
Mr. Justice Clark writes, concurring in Gideon,
That the Sixth Amendment requires appointment of counsel in "all
criminal prosecutions" is clear, both from the language of the
Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304
U.S. 458
(1938).
Having established that, let us turn to whether the 14th Amendment requires it. Obviously, there is no language in the 14th Amd. that says "the states shall provide counsel to all defendants in criminal prosecutions who cannot afford to hire their own". But to use that to state that the "right" (and I put it in quotes sarcastically) was invented might be incorrect. A plain reading of the 14th Amendment makes it clear that there are very few specifically enumerated rights:
No State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
So essentially, the 14th talks specifically about due process and equal protection. It also imposes these requirements on the various States. The Supreme Court initially considered this, not in ‘62 in Gideon, but in 42 in Betts v. Brady. The Court stated that,
while the Sixth Amendment laid down "no rule for
the conduct of the States, the question recurs whether the constraint
laid by the Amendment upon the national courts expresses a rule so
fundamental and essential to a fair trial, and so, to due process of
law, that it is made obligatory upon the States by the Fourteenth
Amendment."
So it was certainly being considered. The Betts court refused to accept the contention that the Sixth Amendment’s guarantee
of counsel for indigent federal defendants was extended to or, in the
words of that Court, "made obligatory upon the States by the Fourteenth
Amendment." The Gideon court concluded
Plainly, had the Court concluded that appointment of counsel for an
indigent criminal defendant was "a fundamental right, essential to a
fair trial." it would have held that the Fourteenth Amendment requires
appointment of counsel in a state court, just as the Sixth Amendment
requires in a federal court.
So it wasn’t that this specific right wasn’t provided for in the 14th, but rather that this right wasn’t a "fundamental" right, rights which are provided for in the 14th. The Gideon court concluded it’s analysis by stating:
We accept Betts v. Brady’s assumption, based as it was on our prior
cases, that a provision of the Bill of Rights which is "fundamental and
essential to a fair trial" is made obligatory upon the States by the
Fourteenth Amendment. We think the Court in Betts was wrong, however,
in concluding that the Sixth Amendment’s guarantee of counsel is not
one of these fundamental rights.
In concluding this, the Court relied on Powell v. Alabama, decided 10 years before Betts.
Governments, both state and federal, quite properly spend vast sums of
money to establish machinery to try defendants accused of crime.
Lawyers to prosecute are everywhere deemed essential to protect the
public’s interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That
government hires lawyers to prosecute and defendants who have the money
hire lawyers to defend are the strongest indications of the widespread
belief that lawyers in criminal courts are necessities, not luxuries.
The 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. From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law.
Knowing the jurisprudence of the Constitution, one cannot reasonably conclude that while it mandated certain protections be afforded citizens from Federal Governmental action, it affirmatively declined to extend those same protections against actions by an individual state.
I would love to hear your views on this topic, including things I might have missed.
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