NACDL Positions New Webinar National Campaign
Although the Sixth Amendment assures counsel in all criminal prosecutions, current Supreme Court jurisprudence limits the types of cases in which a person is actually provided counsel and restricts the timing as to when that counsel must be present.
In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.
Case Types
The Supreme Court currently limits the reach of the Sixth Amendment to felony charges, and misdemeanor offenses for which an individual receives a term of confinement. To date the Court has declined to provide the protections of the constitution to misdemeanors which do not include a term of incarceration. {1} 1 Argersinger v. Hamlin, 407 U.S. 25 (1972), Alabama v. Shelton, 505 U.S. 654 (2002) This can include misdemeanors which do not carry jail sentences, as well as misdemeanor cases in which the court or the prosecutor waives the imposition of a jail sentence.{2} 2 Scott v. Illinois, 440 U.S. 367 (1970)
While the deprivations that accompany incarceration are significant, its absence does not diminish the need for representation. Constitutional protections against unreasonable searches and seizures, evidentiary rules which govern the admissibility of testimony, procedures to secure witnesses and records, and fundamental values including the presumption of innocence, do not disappear simply because the possibilty of going to jail does. Likewise, collateral consequences that impact everything from employment to education to housing, often apply without concern as to whether the individual received a jail sentence, paid a fine, or performed community service. Eliminating the provisions for counsel create a foothold for abuses, mistakes, and misdeeds to take root.
Timing
For those arrested, early hearings are a time in which decisions about liberty and detention are made. Besides the potential of losing your job, not being able to pay your rent, or becoming disconnected with mental health or medical treatment; early pretrial detention correlates with increased rates of conviction, longer jail and prison sentences, and elevated pre-trial and post-conviction re-arrest rates.{3} 3 LJAF The Hidden Cost of Pretrial Detention (2013) Having counsel present at these initial proceedings improve bail outcomes, which in turn, improve case outcomes.
In addition, early appointment allows attorneys to begin representation more quickly, helping locate witness, preserve evidence before it is lost or destroyed, and connect clients to needed services.
NACDL is committed to promoting polices and practices that preserve and protect the Sixth Amendment.
NACDL's Positions
- NACDL advocates for counsel to be provided whenever a criminal conviction may occur as even misdemeanor charges have long-lasting, and often life altering impacts.
- NACDL calls for counsel to be available whenever liberty is at stake or a guilty plea may be entered because decisions made in the earliest stages can define the entire trajectory of a case.
In 2008 NACDL advanced this position in its amicus brief in Rothgery v. Gillespie County[4] 4 Rothgery v. Gillespie County, 554 U.S. 191 (2008).Again in 2010 NACDL urged the recognition of early, engaged representation by counsel as a core tenant of a constitutionally effective public defense system in its amicus brief in Hurrell-Harring v. State{5} 5 Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) In 2012 NACDL's Board of Directors formalized this position.
Resolution Urging the Right to Counsel at Initial Appearance
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Webinar: Right To Counsel: What It Is and What It Isn't - A Community Discussion
This 90-minute webinar addresses the legal standards governing the Sixth Amendment Right to Counsel, as well as providing a frank discussion on the real-world application of these rights. The webinar begins with an overview of the law, including when the right to counsel applies, what it entails, and when it ends. Following the overview is a panel discussion on the real world application of these legal principles, including what it means to have a zealous advocate, the complexities for the community in raising concerns regarding appointed counsel, and challenges in navigating court processes that may undermine the right to counsel.
The legal overview is provided by University of Central Florida Professor Alisa Smith. Among her areas of expertise, Professor Smith has done extensive research regarding misdemeanor courts and waivers of counsel. Her works include Three Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts and Rush to Judgement: How South Carolina’s Summary Courts Fail to Protect Constitutional Rights.
Joining Professor Smith for the panel discussion are Melanie Foote, Manager of the Education & Strategic Planning Branch of the Kentucky Department of Public Advocacy and Damon Venable, social justice advocate & writer. The panel is moderated by attorney Lonnie Randolph.
Speakers:
- Dr. Alisa Smith, Professor of Legal Studies, University of Central Florida
- Melanie Foote, Education & Strategic Planning Branch Manager, Kentucky Department of Public Advocacy
- Damon Venable, Social Justice Advocate & Writer
- Lonnie Randolph, Managing Partner, Randolph & Randolph, P.C.
The Right to Counsel National Campaign
Through a grant funded by the Bureau of Justice Assistance, and working in partnership with National Legal Aid & Defender Association and American University's Office of Justice Programs, NACDL participated in a three-year campaign designed to elevate the Right to Counsel through a campaign to inform policymakers, system stakeholders, and the public about the importance of the right, the ways in which it is not being implemented, and the ways in which each can help elevate the right to counsel within their jurisdiction.
The group's work included the convening of stakeholder and public focus groups to explore current views about the right to counsel, barriers impacting public defense services, and innovations occurring in the field. The results of these focus groups produced a number of guides and reports that can help promote a better understanding of and a more effective implementation of the Sixth Amendment.
- Engaging Key System Actors in Support of the Right to Counsel, (March 2019)
- American's Views on Public Defenders and the Right to Counsel (2017)
- Right to Counsel National Consortium Third Annual Meeting (2017)
More on the Right to Counsel Campaign