The road to recognizing a federal constitutional right to appointed counsel in state court proceedings has been a long one—and one that has a long way to go.
The 6th Amendment of the United States Constitution, ratified as part of the Bill of Rights in 1791, provides that “in all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense.” The 14th Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person within its jurisdiction the equal protection of the laws", was ratified 77 years later, in 1868.
Sixty-four years after that, in Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court of the United States held for the first time that the Due Process of Clause of the 14th Amendment required that counsel be provided to indigent defendants—at least in a state court capital case. And it was 31 years after that, in the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), that the Supreme Court held that the right to counsel was a “fundamental right."
Limitations on Incorporation of the Right to Counsel
But over the next several decades, the Supreme Court set out a number of limits on the extent of the 6th Amendment right to counsel—which thus functioned as limits on when states were required to provide counsel to indigent parties. The right to appointed counsel applies in all felony proceedings regardless of punishment imposed, but only in misdemeanor proceedings where the defendant is actually sentenced to imprisonment. See Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Nichols v. United States, 511 U.S. 738, 743 n.9 (1994). There is no right to appointed counsel in misdemeanor proceedings not resulting in a sentence of incarceration, even if the conviction is subsequently used to enhance sentencing for another crime, or if the revocation of probation may result in actual imprisonment. Nichols v. United States, 511 U.S. 738 (1994); Gagnon v. Scarpelli, 411 U.S. 778 (1973).
As for the right to counsel on appeal, the Supreme Court has held that the 6th Amendment only provides a right to counsel at trial. See, e.g., Martinez v. Court of Appeal, 528 U.S. 152, 160-61 (2000). Although states are not required to provide a right of appeal from a criminal trial, where they do so (and all of them do), the 14th Amendment’s Due Process and Equal Protection Clauses require that counsel be appointed for an indigent defendant. Griffin v. Illinois, 351 U.S. 12, 18-19 (1956) (Black, J., plurality opinion). But this only applies to the first appeal as of right—there is no right to appointed counsel for discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 601-02 (1974).
Not only is there no right to appointed counsel for misdemeanors that do not result in a sentence of incarceration, or for any discretionary appeals (even if capital felony cases); there is also no constitutional right to appointed counsel in a collateral attack on the conviction—that is, in habeas corpus proceedings. And of course, because the 6th Amendment right to counsel is a right that attaches in criminal prosecutions, there is generally no right to counsel in civil proceedings. This includes not only ordinary civil litigation, where typically “only” money is at stake, but also proceedings to terminate parental rights and civil contempt proceedings for failure to pay child support—even where a party may be jailed as a result. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981), Turner v. Rogers, 131 S. Ct. 2507 (2011).
The Impact on Society
Although states are free to grant greater protections beyond the floor set by the federal Constitution, not all do. As a result, indigent litigants lack a right to appointed counsel in an array of criminal and civil proceedings in which they may lose access to things central to their lives: a residence, parental rights, their livelihood or life savings, or critical governmental benefits.
The lack of right to counsel in so many cases highlights the need for adequate funding of legal services for those in need. Only 1% of lawyers work in legal aid, and those that do can represent only a fraction of those who would be eligible for and are in need of their services.
But it is not just the indigent who suffer from lack of representation. In family law courts in New York and California, 80%–90% of litigants are self-represented. Lack of representation results in worse outcomes for parties, and can slow down the processing of cases, making it harder for other parties to get their day in court.
This is not to say that the 6th Amendment is inherently flawed, or that the Supreme Court has erred in its 14th Amendment jurisprudence. One should rarely expect to rely on a constitutional mandate to fully address a social ill.
The Role of Legal Education to Access to Counsel
It is for this reason that an online law school option is so important. The economics of legal education and the legal profession is no mystery: the prevalence of affordable legal services depends in large part on affordable legal education, as law students burdened with six-figure debt can ill afford to offer reasonable rates to clients.
An online law school provides not only economic but geographic access: the very areas that lack law schools tend to lack lawyers. Online law students can remain in their communities while they study, and remain there upon graduation to represent underserved clientele. A healthy legal market will offer a variety of pricing options, so that all those who desire legal representation have a meaningful opportunity to obtain it.
At Concord Law School, we are happy to be celebrating Law Day, and are proud to be serving an important societal role in improving access to justice, thereby fulfilling the spirit of the 14th Amendment that this Law Day is recognizing.