All Americans should have a right to counsel

Our Sixth Amendment right to counsel is one of our chief defenses against the power of the government to take the property, the liberty — and in some cases, the life — of the accused. Yet it is sadly and routinely abused by the government. The well-documented failure of state and local governments to respect this critical constitutional right has resulted in unjust convictions, hurt public safety and cost taxpayers dearly.

Unfortunately, it came to light last Thursday that Attorney General Jeff Sessions has effectively shuttered the Access to Justice Office, the very section of the Department of Justice that was created to help protect this essential constitutional right. While it is quite common for a new administration to shift priorities and reshuffle departments, the closure of this office is a real blow and should be reversed.

Each day, thousands of people are incarcerated in states, counties and municipalities without ever speaking to an attorney and in flagrant violation of their constitutional right to counsel.  For those that do get an attorney, a defendant is too often assigned a lawyer beholden to the presiding judge to secure future court appointments, or one driven by financial incentives to dispose of the case quickly. Or, she may be represented by a public defender office, which is likely to be understaffed, underfunded, undertrained and overworked, and often lacking the oversight necessary to ensure constitutionally adequate representation.

{mosads}The Access to Justice Office helped preserve our Sixth Amendment rights by intervening in cases challenging the denial of effective counsel to indigent defendants. Its work on behalf of the American people led to agreements by states and counties to reform their justice systems to ensure that people accused of crimes — including children — do not lose their constitutional rights simply because they are too poor to afford an attorney.

The move to effectively close the office is shortsighted, particularly for those concerned about public safety. Poor lawyering is the chief cause of wrongful conviction in almost a quarter of the cases in the National Registry of Exonerations. When law enforcement resources are misdirected at the innocent, guilty perpetrators remain at large, free to commit new crimes and harm new victims. As such, our Sixth Amendment crisis has the potential not only to harm those directly caught up in the criminal justice system, but society at large. 

Enforcement of the Sixth Amendment is also cost-effective — a fact to which then-Sen. Jeff Sessions would agree. As he observed in an August 2013 letter, along with Sen. Chris Coons (D-Del.), “Quality [defense] representation not only promotes the rule of law and safeguards constitutional rights, it also saves money by reducing pre-trial and post-trial incarceration costs.” Indeed, without proper representation, many offenders are sentenced to inappropriately-lengthy prison terms, unnecessarily driving up taxpayer costs. Additionally, even conviction for the most minor of crimes can make it very difficult for a person to participate in our economy. In many instances, it is only the guiding hand of counsel that helps the accused avoid the lifelong consequences that inhibit their ability to get a job and stay employed.

It’s a public policy concern with a populist bent as well: While corporations may have unlimited dollars to hire excellent counsel to assist in their defense, it’s lawyers appointed pursuant to the Sixth Amendment that protect everyday Americans in courtrooms across the country. This concern, in particular, animated the 2015 congressional hearing on public defense held by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has long espoused the belief that poor people do not get a fair shake in our criminal justice system: “[T]he Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day. No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long,” he said. Given that as many as 80 percent of the people in the criminal justice system may find themselves reliant on court-appointed counsel, this is a crisis we can scarcely afford to ignore.

Then-Sen. Sessions and Chairman Grassley were right. This is a nonpartisan problem with bipartisan support for solutions. Rather than diverting resources from the Access to Justice Office, the Department of Justice should be redoubling its efforts to protect our right to counsel. Without it, the remainder of our constitutional rights become less meaningful. As the Supreme Court stated in United States v. Cronic, “[T]he right to be represented by counsel is by far the most pervasive for it affects [the accused’s] ability to assert any other rights he may have.”

Sarah Turberville is director of The Constitution Project at the Project on Government Oversight, and is a former public defender. Lars Trautman is a senior criminal justice fellow with the R Street Institute, and is a former prosecutor.