The right to an attorney in criminal proceedings is clearly stated in the Sixth Amendment to the U.S. Constitution, but the real-world application of this right is quite complicated. Even when a defendant’s right to representation by an attorney seems unquestionable, the issue remains of how to pay for legal services. Courts may appoint an attorney to represent an indigent defendant at public expense. Some jurisdictions have established public defender offices, while others maintain a roster of criminal defense attorneys who will accept court appointments. These programs are frequently underfunded and lacking in resources.
The right to an attorney has applied in federal prosecutions for most of the nation’s history, but it did not extend to all state-level felony cases, based on the Fourteenth Amendment, until the U.S. Supreme Court decided Gideon v. Wainwright, 372 U.S. 335 (1963). The court later expanded the right to an attorney to state-level misdemeanor cases that carried a substantial risk of jail time, usually at least one year. The right to an attorney, regardless of financial means, is one of the fundamental rights included in the Miranda warnings that police must read to people during or after their arrest.
Regardless of well-established constitutional rights, not everyone can afford an attorney. This issue appears to have gone without notice for much of the nation’s history. The person credited with the first proposed public defender’s office is Clara Shortridge Foltz, who was also the first female attorney on the West Coast. In 1893, she presented model legislation creating a county officer to “defend, without expense to them, all persons who are not financially able to employ counsel and who are charged with the commission of any contempt, misdemeanor, felony or other offense.” The California Legislature finally passed the bill in 1921, and it became known as the “Foltz Defender Bill” in at least 32 other states. Today, the federal government has a public defender program, as do many states and counties.
The Supreme Court first ruled on the issue of indigent defense in Powell v. Alabama, 287 U.S. 45 (1932), which held, in part, that the state denied the defendants’ due process rights by not providing access to counsel, despite the defendants’ inability to pay legal fees. Since the Gideon decision, the Supreme Court has held that state courts must appoint counsel in misdemeanor cases that carry the possibility of substantial jail or prison sentences. This applies even when the defendant’s specific circumstances carry no actual risk of confinement, such as when a defendant was facing, at worst, a suspended sentence of more than one year. Alabama v. Shelton, 535 U.S. 654 (2002).
This right to counsel, including appointed counsel, does not apply to witnesses in grand jury proceedings. United States v. Mandujano, 425 U.S. 564 (1976). The right applies to people in pre-trial matters “from the time of their arraignment until the beginning of their trial.” Brewer v. Williams, 430 U.S. 387, 398 (1977).
Along with the right to silence, the right to counsel affects ongoing police investigations. Once a person’s Sixth Amendment right to counsel has attached, police may not elicit incriminating statements from them. Massiah v. United States, 377 U.S. 201 (1964).
The Sixth Amendment generally does not include a right to court-appointed counsel in post-conviction proceedings, such as appeals and habeas corpus petitions. The Supreme Court has held that defendants do not have a right to appointed counsel for discretionary appeals. Anders v. California, 368 U.S. 738 (1967); Smith v. Robbins, 528 U.S. 259 (1999). The right to appointed counsel only extends to the “first appeal of right,” but not to further collateral attacks on a conviction. Pennsylvania v. Finley, 481 U.S. 551 (1987).
