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Home > Blog > All > Right to Counsel

Right to Counsel

  • March 22, 2012

    Supreme Court Extends Right to Effective Counsel to Plea Bargains

    by Nicole Flatow

    The U.S. Supreme Court significantly expanded the right to counsel in a pair of decisions issued Wednesday that established defendants’ right to the effective assistance of a lawyer during plea negotiations.

    “Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the five-justice majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

    Kennedy added that the right to effective assistance of counsel applies to “all ‘critical’ stages of the criminal proceedings.”

    About 97 percent of convictions in federal court are the result of plea bargains and not a trial, according to The New York Times.

    Widener University law professor Wesley M. Oliver told The Times the decisions constitute “the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”

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    Tags:
    Access to Justice, Indigent defense, Supreme Court, Constitutional Interpretation and Change, Criminal Justice, plea bargaining, Right to Counsel, Sixth Amendment
  • October 31, 2011

    How Strong is the Right to Counsel During the Plea Bargaining Stage?

    by Nicole Flatow

    The vast majority of criminal cases end in plea bargains, yet the scope of a defendant’s constitutional right to counsel during the plea bargaining stage remains uncertain, with two cases before the Supreme Court today addressing this issue.

    The Court’s decisions in those two cases, Lafler v. Cooper and Missouri v. Frye, "could go a long way to ensuring that the right to counsel is meaningful during plea negotiations,” write The Constitution Project’s Mary Schmid Mergler and Christopher Durocher in an ACSblog guest post previewing these and other right-to-counsel cases this term.

    “Today, nearly 95 percent of criminal cases are resolved through pleas rather than trial, making the effective assistance of counsel during plea negotiations essential,” they write.

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    Tags:
    Constitutional Interpretation and Change, Criminal Justice, Right to Counsel, Sixth Amendment
  • October 4, 2011

    This Term’s Cases Consider Right to Counsel in Context of Current Justice System Realities

    Guest Post

    By The Constitution Project’s Mary Schmid Mergler and Christopher Durocher. Schmid, senior counsel, and Dorucher, government affairs counsel, are the authors of an ACS Issue Brief released today, “The ‘Right-to-Counsel Term.’"

    Today, the Supreme Court is hearing argument in two cases related to the right to counsel, the first two in a collection of cases this fall that has earned the October 2011 Term the nickname “Right-to-Counsel Term.” Three other cases are slated for argument later this fall.  We examine these cases in greater depth in our new ACS Issue Brief.

    Martinez v. Ryan and Maples v. Allen kick-off the Right-to-Counsel Term by raising the question of what, if any, right to effective counsel a defendant can expect in post-conviction proceedings.  In Martinez, the Court will consider whether the right to counsel should extend to ineffective assistance of counsel claims in a first state habeas petition if the defendant was prohibited from raising such claims during his direct appeal (when the state is required to provide him with counsel).  In Maples, the Court is being asked to decide whether a habeas petitioner is entitled to an equitable exception to the Antiterrorism and Effective Death Penalty Act’s (AEDPA) procedural default rules when a defendant has been completely abandoned by counsel.  In both cases, the defendants have legitimate claims that they were prevented from raising on post-conviction appeal due to counsel’s errors.  And in both cases, fundamental fairness requires that these individuals, who will otherwise lose their right to challenge their convictions due solely to the errors or carelessness of their counsel, be permitted to raise those claims. 

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    Tags:
    Access to Justice, Fidelity to the Constitution, Methods of interpretation, Indigent defense, Supreme Court, Constitutional Interpretation and Change, Criminal Justice, Equality and Liberty, Guest Post, Lafler v. Cooper, Maples v. Allen, Martel v. Clair, Martinez v. Ryan, Missouri v. Frye, plea bargaining, Right to Counsel, Sixth Amendment
  • June 21, 2011

    Turner v. Rogers: What the Court Did and Didn’t Say

    Guest Post

    By Rebekah Diller, deputy director of the Justice Program at the Brennan Center for Justice. This is a cross-post from the Brennan Center’s blog.

    In a mixed result for the rights of indigent parents, the Supreme Court yesterday held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful. However, the Court also ruled that parents facing jail time for failure to pay child support do not have a categorical right to a court-appointed defense attorney when the other parent is unrepresented.

    The case, Turner v. Rogers, involved an appeal of an order finding Michael Turner in civil contempt because of his failure to pay child support. At the hearing, Mr. Turner had been unrepresented by counsel and had attempted to explain to the judge why he could not pay his debt. The judge did not make any finding as to Turner’s ability to pay the arrears and nonetheless ordered Turner to serve a year in prison. 

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    Tags:
    Access to Justice, Legal services, Constitutional Interpretation and Change, Equality and Liberty, child support, Guest Post, Right to Counsel
  • September 3, 2010

    Despite Evidence of Failing Indigent Defense System, Government Lacks Fundamental Data, Issue Brief Author Says

    Evidence abounds that the indigent defense system is in crisis. Yet we lack data on "even the most basic questions" related to indigent defense, such as "how many defendants are represented by the indigent defense systems in this country, how many misdemeanor defendants have a right to counsel, or what percentage of defendants who are entitled to court-appointed representation go unrepresented." writes Erica J. Hashimoto in an ACS Issue Brief released this week.

    According to a small-sample survey conducted by the Bureau of Justice Statistics (BJS), 30 percent of defendants charged with misdemeanors are denied their right to counsel. But these results omit many defendants with suspended terms of incarceration who may have also had a right to counsel. And anecdotal evidence in some states, such as North Dakota, shows that systems fail to appoint counsel at arraignment routinely in misdemeanor cases, "despite the fact that most defendants pled guilty at the hearing and many were sentenced to jail time." All of this suggests that a significant percentage of misdemeanor defendants are deprived their right to counsel, and that more data is necessary to determine the extent of the problem and craft solutions, explains Hashimoto, associate professor of law at the University of Georgia School of Law.

    In her Issue Brief, "Assessing the Indigent Defense System," Hashimoto urges the Bureau of Justice Statistics to collect a range of data on misdemeanor defendants, as they do on felony defendants in the 75 largest counties. Beyond that, BJS needs to collect data on representation rates in smaller counties and jurisdictions, where "there may not be an experienced indigent defense bar, and other bar members may not view it as their obligation to ensure that all felony defendants are represented."

    On the issue of effective assistance of counsel, there is some more data available. Surveys of public defenders show those in the 100 largest counties are assigned between 50 and 80 percent more cases than permitted by maximum caseload standards, and "there appears to be no dispute that lawyers with those types of caseloads cannot provide effective assistance." Thus, Hashimoto says, we must gather information about where public defender caseloads are highest, how we can most effectively control caseloads, and at what point in the process defendants are assigned public defenders.

    "None of these steps will fix the indigent defense system overnight," Hashimoto concludes. "But until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."

    Hashimoto's Issue Brief is the third in an ACS series on strengthened roles the federal government can play in addressing the persistent crisis in indigent defense.

    The first two Issue Briefs are "A Legislative Approach to Indigent Defense Reform" by Cara H. Drinan and "From Error Toward Quality: A Federal Role in Support of Criminal Process," by James M. Doyle.

    Hashimoto's ACS Issue Brief is available here.

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    Tags:
    Access to Justice, Criminal Justice, Indigent Defense, Ineffective Assistance of Counsel, Right to Counsel, Sixth Amendment
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