Civil Liberties

The Disappearing Sixth Amendment

In many parts of the U.S., those who can't afford a lawyer must wait months to meet with public defenders.


You have the right to an attorney. If you cannot afford an attorney, one will be provided to you.

So goes the the Miranda rights spiel heard on 1,000 cop shows. But in many parts of the U.S., it's not quite true. Those who cannot afford a lawyer are left waiting for months to meet with public defenders already buried under other cases.

After Shondel Church was arrested for felony theft in 2016, the Missouri public defender service told him his case was winnable, but he would have to sit in jail six months before an attorney could prepare it. After waiting three months without a job and away from his family, Church took a plea deal. He's now the lead plaintiff in a federal class action lawsuit filed in March by the American Civil Liberties Union. The group is arguing that Missouri's woefully inadequate roster of public defenders violates poor residents' constitutional rights.

The Supreme Court ruled in the landmark 1963 case Gideon v. Wainwright that the Sixth Amendment guarantees a right to effective legal counsel. "Reason and reflection," the justices wrote, "require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him."

But states have undercut the Gideon guarantee by chronically underfunding public defender services. The 370 attorneys doing the work in Colorado have a load of more than 80,000 cases a year. A 2014 study by the American Bar Association (ABA) found that in 97 percent of cases, Missouri public defenders failed to meet the ABA's recommended minimum hours to effectively represent their clients.

And last year in Louisiana, where about 85 percent of criminal defendants qualify for a court-appointed attorney, 33 of the state's 42 public defender offices started turning away cases they said they no longer had the resources to handle. Their reasoning? What little legal assistance they could provide would be so ineffective as to violate defendants' constitutional rights anyway.

When public defender offices don't have time to investigate cases, file motions for discovery, or do any of the rudimentary legwork involved in preparing for trial, it leaves defendants at an enormous disadvantage. It's not a coincidence that Louisiana also has the highest incarceration level in the country and the second-highest wrongful conviction rate, according to the National Registry on Exonerations.

For the hundreds of thousands of poor defendants who churn through the criminal justice system every year, choosing between a plea deal or months in jail waiting on an attorney who will barely know the details of their case is a lose-lose proposition.

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  1. As an alternative to simply raising the funding levels of public defenders’ offices, how about simply removing all victimless crimes from the law books?

    I’m sure their caseloads would decrease dramatically and there’d be more time to give their clients the attention they deserve.

    1. ^^This

    2. Precisely; We can respect the rights of the accused by requiring the various jurisdictions to provide adequate representation or we can simply say they have so much time to bring whatever level of public defender into meaningful contact with the accused. No public defender? Then you don’t get to bring people to trial. Can’t bring ’em to trial? Then you must let them go, and expunge the record of the accusation.

      1. This has some good aspects, but it also means that someone whose income is too high to qualify for a public defender would be discriminated against, both in that they would be prosecuted for sure AND that they would have to wait longer (prosecutors would prioritize cases with indigent defendants to avoid having to set them free). And the income thresholds are not that high BTW.

        1. Then make the limit; you must bring them to trial, WITH appropriate legal representation, within a set period. Extensions and delays requested by the DEFENSE reset the clock. Requests by the prosecution do not.

          1. Isn’t this already enshrined in the right to a speedy trial?
            Criminal defendants (potentialy everyone) need to recognize that public defenders are a branch of the district attorneys office and arm themselves with rudimentary knowledge of their rights.

            “Do you waive your right to…”

            Also for the post above regarding victimless crime.
            The state is the only victim of crime and it can not relinquish that power.

    3. Go further, and require that only victims (including guardians and estate/next of kin) can prosecute. Make losers pay, and that includes all costs which would not have been incurred absent the crime — lost wages, baby sitters, medical care, damage, recovery, investigation, serving warrants, in addition to the usual lawyer and court costs.

      Some people object that this is a horrible task to dump on people grieving for a murdered child or in the midst of recovering from a busted up home, but most cases would be handled by insurance companies anyway, and there would be plenty of businesses popping up to take over most of the work. The point is to get it out of government hands, where selecting which cases to prosecute is as prone to corruption as everything else the government does.

      1. The victim of a mugging pays a lawyer to prosecute the mugger, and then if the mugger is found guilty he’s on the hook to pay for the victim’s lawyer, medical care, etc.? What happens if he mugged the guy because, you know, he didn’t have any money of his own?

        Or are people going to pay for legal insurance like they pay for car and health and life insurance, and then the insurance company handles law costs?


        1. I figure the primary method of ensuring the losers pay is to prevent them from filing any complaints for a lesser amount. The practical effect would be that anyone, including the victim (or the victim’s hired police, whose cost is added to the restitution), could legally steal from the crook. Very few crooks don’t have a TV, car, or any kind of assets they would rather keep than have legally stolen.

          Maybe insurance would cover that too; it certainly covers some losses today, usually with a deductible. Suppose your $300 TV is stolen. Probably that’s less than most deductibles. Yes, under my system, you could theoretically take the crook to court and recover all the necessary costs, but the hassle is still there and probably not worth the hassle — that’s why there are deductibles in the first place, to avoid the penny ante stuff.

      2. You’re still pushing this stuff even after I eviscerated it in the other thread?

    4. That would help. But it wouldn’t help nearly as much as fixing the cause of all this BY SIMPLIFYING LAW! I don’t just mean the statutes, I mean all of law, period. How’d society get into this crazy situation where there’s this huge profession called “law”? If you had a dispute within your family, club, business, church, school, or whatever, would you ever think of handling it by means so complicated as what’s arisen in society at large? Civil law is complex enough, but criminal law is outright absurd, founded on the long-obsolete concept that the monarch is a party to all such cases.

      Unfortunately this problem is intractable, as the people left in charge, who could reform it, are in the jobs that they’d be making superfluous by fixing it.

      1. It’s been going on forever, it seems. I remember reading that John Adams handled a lot of “his cow wandered into my pasture” cases when he practiced law in Braintree before the Revolution.

      2. How’d society get into this crazy situation where there’s this huge profession called “law”?

        I’m sure that the bulk of people elected to legislative bodies being lawyers themselves has nothing to do with it.

        1. Has something to do with it, but the causality may not be running primarily in the direction you think.

      3. How’d society get into this crazy situation where there’s this huge profession called “law”?

        It’s not exactly a new profession in countries that have any semblance of the rule of law. Shakespeare’s dramas already had characters complaining about lawyers.

        If you don’t like lawyers existing, there are plenty of authoritarian countries that would love to have you.

    5. Felony theft isn’t a victimless crime.

    6. Exactly. But given the grip that the religious right has on the country right now, that’s not going to happen.

      1. Exactly what grip does the “religious right” have on the country?

        At best there are fighting a rearguard action.

    7. Are you crazy? How would the power-grabbers keep all that grabbed power?

  2. So goes the the Miranda rights spiel heard on 1,000 cop shows. But in many parts of the U.S., it’s not quite true. Those who cannot afford a lawyer are left waiting for months to meet with public defenders already buried under other cases.

    So, just like govt health care.

  3. Instead of public defenders, provide the defendant with exactly as much money as the prosecutor is spending. Count all costs — police and prosecutors obviously, but make sure to include office space, equipment, etc.

    These funds have to be provided simultaneously, not delayed for end of month accounting. Prosecutors almost certainly already log their time to specific cases, and police could easily add that. Detectives who go around asking questions, interviewing witnesses, collecting evidence — all that no doubt has to be logged already, so whenever those time sheets are processed, or whenever those people get a paycheck, cut a simultaneous check for the defendant’s legal team.

    Of course there will be corruption. Police and prosecutors will be found logging time for the wrong cases so they can short scumbags. Defendants will find ways to spend the money even when their case is complete.

    But so what? If the government is pursuing you, then they can damn well pay for your defense and add it to the restitution if you lose — that should cut down on some of the defense abuse. If they don’t think they cn collect it, then they probably couldn’t collect the fines either. It will also encourage them to not pick dodgy cases just so you can enjoy the ride.

    1. A lot of the simplest corruption could be easily found by comparing recorded times of interviews, evidence collection, etc with the prosecutor and police activity logs. Trying to short the defense by cramming evidence collection into a very short time span would make the evidence collection look cursory and perfunctory and call into question its validity and thoroughness. Claiming only a few minutes for an important witness interview — same thing. Claiming too much time, to help funnel more money to friends, would clash with other activity.

      There would be some obvious mistakes, easily discounted. Forget to log the start time? Easy enough to figure out. 2 minute meet in the hallway? No need to log that. But if that short meetup turns into half an hour, the gaps in the call log will need explanation.

    2. So you’re doubling the cost of every prosecution (even completely legitimate ones for victimful crimes), and further providing a means for a guilty defendant to pass lots of money to family and friends under the guise of “legal team”. Hell, it could be profitable to be charged with a crime in that system.

      1. The government wields tremendous power in choosing who to prosecute and how. Their resources are infinite for all practical purposes.

        A: This throws some fairness back into the game.

        B: I doubt their budget would double. More likely, they’d be more creful who they charge.

        C: If the government has a good case and proves it fairly, they add the defense cost to the restitution.

        D: If the government picks a shaky case or provides a shoddy prosecution, the defendant deserves to get away with a profit, if they do.

  4. I’m stunned! The ACLU is doing something that DOESN’T make me want to belabor them with a nine-iron!

  5. There’s a lot of injustice here, but it really makes me unhappy when courts order government agencies to spend more money.

    I would be happy to donate to a charity that provides attorneys for poor defendants, but I’ll bet no such charity exists.

    1. When governments spend my tax money prosecuting somebody, with the incredible power advantage they have and the practically infinite resources, and when they pick and choose who to prosecute and the level of charges, it’s only fair that they provide as many resources to the defense.

    2. I hate to say this, but I thought that was what the Southern Poverty Law pillocks were about, at the start.

  6. I’m fairly confident that the 6th amendment meant to say that people have a right to (try to) obtain help from counsel.

    No one can have a right to the labor of others whether it is legal counsel or care of one’s health.

    1. It’s not a right to an attorney as a Natural Right, more like as a contractual obligation. If the state is going to charge you with a crime you have the right to defend yourself and given the imbalance in power between the state and the citizen, an effective defense requires the services of a lawyer. Barring that, the state should be fine with an offer from the defendant to have the trial held in his home, presided over and in front of a jury of his friends and family and neighbors, so long as they take a solemn vow to be completely fair and impartial. I mean, that’s what the state’s offering, isn’t it? We’re going to be completely fair and impartial and unbiased – but the trial is going to take place in a state court overseen by state employees according to rules established by the state. And of course the judge was quite likely a former prosecutor who got elected with the endorsement of the prosecutor’s office and the police department – no chance there’s any sort of inherent unfairness there.

      If the criminal justice system were really dedicated to seeing that justice is done, the public defender’s office should be funded and staffed exactly the same as the prosecutor’s office.

    2. You are right that the “right to a state-provided attorney” is a recent innovation. But it does make sense, even if it is playing fast and loose with the BoR text.

      Just like the exclusionary rule was invented out of thin air as a pragmatic means of enforcing the 4th amendment, which otherwise would be a dead letter.

  7. So, why doesn’t the ACLU, and all of its contributors just donate enough time and money to address the situation?

    1. Do you have any idea how much an effective defense for every indigent defendant in the country would cost? Probably well into the billions, maybe tens of billions.

  8. Here’s the stuff C.J. wouldn’t provide a link to: (spaces in link due to “word” length limits from the squirrels) 2017/03/13/missouris-underfunded- public-defender-office-forces-the-poor- to-languish-in-jail/

  9. How about simply removing all victimless crimes from the law books?

    Genius! Why hasn’t this occurred to the lawmakers and the people who vote for them? Don’t they know that the crimes are victimless? Haven’t they been paying attention to the libertarians? Why not?

  10. Look, don’t wanna be in jail? Don’t be poor.

  11. in Harris County, TX. now, you have to provide proof of income (and likely more) documents to qualify for a public defender. MINOR cases can cost 1,000 or MUCH MORE and even having a ‘job’, no matter the paycheck can disqualify you from public defender representation.

    one basically has to be indigent (or worse) to get a court appointed attorney. while i can see the ‘cost-saving’ side of this as applied to the bureaucracy’s budget, it leaves me wondering why the justice system bears the brunt of these ‘stealth’ austerity measures while bureaucratic cronies get rich from other programs that have zero public benefit.

  12. Okay, other than being in the constitution thing, how is this different than free health care?

    Rather than forcing doctors, to work for free (or whatever the government wants to pay), lawyers have to work for free (or whatever the government is paying).

    Yes, you could say the government is putting these people on trial, so they are obligated to. But the government is also restricting who can get healthcare and drugs

    1. Public defenders are government employees, hired specifically for the purpose of representing defendants. So there is your difference. (unless you want to go deeper and talk about the involuntary nature of taxes that is)

      That said, in Missouri at least, the guy in charge of the public defender’s for the whole state does have the authority to compel private practicing attorneys to defend persons. The current occupant of that position used this authority once…to force the governor Jay Nixon to represent someone.

      1. So what did Mr. Nixon do to deserve such an honor?

        1. In short, he is not very interested in making sure that public defenders are adequately funded.

          More Here

  13. “Reason and reflection,” the justices wrote, “require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him…because we’ve written so many god damn laws even we don’t really know what they are.

    See, if the law was simple this would be a moot point.

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