The Right to Counsel Clause

In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

—Judge Lawrence VanDyke & Alexandria Overcash

Introduction

The Sixth Amendment of the U.S. Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” On the eve of the Revolution, a limited version of this right existed in English common law. Counsel could assist defendants but only in some circumstances. Scholars and legal commentators have long understood the Framers to have rejected that narrow common-law rule in favor of a more expansive right to counsel. That expanded right in turn has been amplified and augmented by the American courts, particularly during the twentieth century, so that its contemporary application extends well beyond its original meaning.

The Common-Law Right to Assistance of Counsel

English common law permitted, and sometimes required, counsel to aid defendants in misdemeanor cases.¹ But for felonies, the common law prohibited counsel from aiding a defendant on issues of fact; counsel could only argue questions of law.² This rule had no exceptions until Parliament passed the Treason Trials Act of 1695.³ That act created a narrow exception for felony-treason cases: Counsel could aid defendants, and courts had to appoint counsel if a defendant requested such.⁴ The common-law rule remained unchanged for all other felony offenses.⁵ Despite this common-law rule, the court purported to serve as the defendant’s counsel.⁶

The limitation on the assistance of non-judicial counsel received wide criticism. Sir William Blackstone, for example, faulted this rule as “not at all of a piece with the rest of the humane treatment of prisoners by the English law.”⁷ Over time, the courts’ practices became more lenient.⁸ Judges would allow counsel to instruct defendants on what questions to ask with respect to matters of fact. At times, judges even allowed counsel to ask the questions themselves. Nevertheless, Blackstone remained critical, noting that “this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy the interposition of the legislature.”⁹

Creation of the American Right to Assistance of Counsel

The American colonists, heavily influenced by Blackstone, seem to have shared his concerns. Before independence, at least twelve of the thirteen colonies had rejected the English common-law rule and provided a right to the assistance of counsel.¹⁰ Most of the colonies rejected the common law completely, and a couple limited the right to counsel to capital offenses or more serious crimes.¹¹ Seven of the colonies also provided a limited statutory right to appointment of counsel for certain types of crimes, such as capital offenses and treason.¹² As the U.S. Supreme Court would observe in Betts v. Brady (1942), a “great diversity of policy” existed regarding the appointment of counsel in state legislation, and no state constitution contained a right to appointed counsel.¹³

During the state ratification conventions, seven states requested a bill of rights. Two of them, Virginia and North Carolina, proposed a right to counsel, and New York conditioned its ratification on the assumption that the new government would not abridge certain rights, including the right to counsel.¹⁴

In 1789, the First Congress proposed what would become the Bill of Rights. James Madison proposed an amendment that contained the right to assistance of counsel.¹⁵ Little discussion of the right occurred before it was ratified as part of the Sixth Amendment on December 15, 1791.¹⁶

Judicial Understanding of the Right to Assistance of Counsel

Few cases from the nineteenth century addressed the right to assistance of counsel. United States v. Van Duzee (1891) sheds some light on what the right to assistance of counsel was originally understood to mean.¹⁷ The Court explained that “[t]here is . . . no general obligation on the part of the government . . . to . . . retain counsel for defendants or prisoners.” Rather, the Court observed, “[t]he object of the constitutional provision was merely to secure those rights which by the ancient rules of the common law had been denied to them.”¹⁸ The Court stressed that “it was not contemplated that this should be done at the expense of the government.”¹⁹ This appears to have been the common understanding of the Sixth Amendment right to assistance of counsel until the 1930s.²⁰

The Court changed course in Powell v. Alabama (1932), an appeal from a state-court conviction.²¹ The Court held that the Due Process Clause of the Fourteenth Amendment entitles a defendant to appointment of counsel in some capital cases.²² Johnson v. Zerbst (1938) held that the Sixth Amendment prohibits a federal court from convicting a criminal defendant of a felony unless he has or waives the assistance of counsel.²³ This rule “require[d] appointment of counsel in all cases where a defendant is unable to procure the services of an attorney.”²⁴ Under Johnson, the government had to pay for counsel for indigent defendants. But Betts v. Brady (1942) made clear that Johnson applied only to defendants in federal courts and did not require state courts to appoint and pay for a criminal defendant’s attorney. The Court based Betts on a survey of the common law, state constitutions, and statutory provisions that governed the right to assistance of counsel and the right to appointed counsel.²⁵

Two decades later, the Supreme Court overturned Betts in Gideon v. Wainwright (1963). This landmark case held that the Sixth Amendment requirement of appointing counsel to indigent defendants applies to the states under the Fourteenth Amendment.²⁶ Gideon has received strong criticism from those who claim that it is inconsistent with the original meaning of the right to assistance of counsel. Justice Clarence Thomas, for example, has observed that “[t]he Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.”²⁷

As a historical matter, this criticism seems warranted. The right to assistance of counsel arose as a response to the restrictive common-law rule that prohibited attorneys from aiding defendants on questions of fact in nearly all criminal cases. English common law originally provided appointed counsel only to defendants in treason cases, not to all criminal defendants accused of felonies. By contrast, the right of criminal defendants in the United States to hire counsel became pervasive in state constitutions and statutes. However, the right to appointed counsel did not gain the same traction. It was not included in state constitutions; instead, when provided by the states, it found its home only in statutory provisions.²⁸

Moreover, the states’ policies were diverse and fluctuated over time. In some states, appointment was discretionary; in others, it was obligatory.²⁹ Some states required appointment in all cases; others required it only for certain offenses.³⁰ Against this backdrop, the best original understanding of the right to assistance of counsel is that it provided the right to retain counsel but not to have counsel appointed. Gideon did not attempt to explain how its construction of the right to assistance of counsel is consistent with the original understanding of the right. Nor did Gideon attempt to square its conclusion that this right is “fundamental” with the states’ inconsistent history of appointing counsel. Even so, Gideon remains the law of the land today and serves as the foundation for the modern application of the right to assistance of counsel.

Modern Application

Under modern doctrine, the Sixth Amendment right to assistance of counsel arises upon “the initiation of adversary judicial criminal proceedings.”³¹ Once the right has attached, it applies to all critical stages of the criminal process.³² The right protects both the defendant’s right to be assisted by counsel and the defendant’s right to represent himself if he knowingly and intelligently waives his right to counsel.³³ Counsel does not need to be provided in a misdemeanor case if a defendant is not sentenced to a term of imprisonment.³⁴

If the defendant chooses to exercise his right to assistance of counsel, the counsel, whether appointed or retained, must provide “effective assistance of counsel.”³⁵ Strickland v. Washington (1984) explained that counsel violates this requirement if the counsel’s performance falls outside the range of professional competence and the counsel’s performance prejudices the defendant so as to call into question the reliability of the proceedings.³⁶ Courts analyze the first prong under the prevailing professional norms and take all circumstances into account.³⁷ To satisfy the second prong, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”³⁸ The Court has expanded on the modern scope of this standard.³⁹

Open Questions

• When, exactly, does the right to counsel attach? Does a person have a right to counsel, for example, in pre-indictment plea negotiations?
• What qualifies as a “critical stage” during which a defendant has a right to counsel? Is bail determination, for example, a critical stage?

1. William M. Beaney, The Right to Counsel in American Courts 8–9 (1955). ↩︎
2. Id. at 9; John Langbein, The Origins of Adversary Criminal Trial 26 (2003). ↩︎
3. Langbein, supra at 67–68. ↩︎
4. Id. ↩︎
5. Beaney, supra at 11–12. ↩︎
6. Langbein, supra at 28–29; 3 Edward Coke, Institutes of the Laws of England 29. ↩︎
7. 4 Blackstone 355. ↩︎
8. Id. ↩︎
9. Id. at 355–56. ↩︎
10. Powell v. Alabama, 287 U.S. 45, 61–65 (1932); Holden v. Hardy, 169 U.S. 366, 386 (1898). ↩︎
11. Powell, 287 U.S. at 61–65. ↩︎
12. 316 U.S. 455, 467 (1942). ↩︎
13. Id. ↩︎
14. Beaney, supra at 23; Laurie S. Fulton, The Right to Counsel Clause of the Sixth Amendment, 26 Am. Crim. L. Rev. 1599, 1604 (1989). ↩︎
15. Beaney, supra at 23. ↩︎
16. Id. at 23–24. ↩︎
17. 140 U.S. 169, 173 (1891). ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Bute v. Illinois, 333 U.S. 640, 661 n.17 (1948). ↩︎
21. 287 U.S. 45, 49 (1932). ↩︎
22. Id. at 50, 71. ↩︎
23. 304 U.S. 458, 463 (1938). ↩︎
24. Betts, 316 U.S. at 464. ↩︎
25. Id. at 465–73. ↩︎
26. 372 U.S. 335, 344 (1963). ↩︎
27. Garza v. Idaho, 586 U.S. 232, 260 (2019) (Thomas, J., dissenting). ↩︎
28. Betts, 316 U.S. at 467. ↩︎
29. Id. at 468–69. ↩︎
30. Id. at 469–71. ↩︎
31. Kirby v. Illinois, 406 U.S. 682, 689 (1972); Gideon, 372 U.S. at 344. ↩︎
32. Iowa v. Tovar, 541 U.S. 77, 87 (2004). ↩︎
33. Faretta v. California, 422 U.S. 806, 807, 817 (1975). ↩︎
34. Scott v. Illinois, 440 U.S. 367, 373–74 (1979). ↩︎
35. McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970) (emphasis added). ↩︎
36. 466 U.S. 668, 687 (1984). ↩︎
37. Id. ↩︎
38. Id. at 694. ↩︎
39. Padilla v. Kentucky, 559 U.S. 356 (2010); Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v. Frye, 566 U.S. 134 (2012); Garza v. Idaho, 586 U.S. 232 (2019). ↩︎