Vindicating the Right to Counsel

It has been nearly fifty years since the Supreme Court granted certiorari in a case brought by an indigent, unrepresented Florida man convicted of petty larceny. Clarence Gideon’s claim was simple: the Constitution of the United States entitled him—and all indigent defendants subject to a sentence of imprisonment—to ‘‘the Assistance of Counsel in [their] defence.’’ By vindicating Gideon’s claim, the Supreme Court elevated the Sixth Amendment guarantee from aspiration to reality for thousands of people processed by criminal courts each year. The half century that followed Gideon has brought significant changes to the criminal justice system. A decade after Gideon was decided, public defenders were estimated to represent approximately 3.2 million indigent individuals annually; by 2007, that number had nearly doubled. This resulted in part from a dramatic increase in the number of federal and state crimes, which in turn resulted in dramatic growth in the U.S. prison population: from 1970 to 2007, the number of state and federal prisoners rose from roughly 200,000 to 1.6 million. The rapid growth of the criminal justice system did not go unnoticed by lawmakers. As the reach of the criminal law grew longer, courts and legislatures began recognizing an increasing number of procedural rights. Compared to Gideon, today’s defendants possess many new procedural protections in a wide variety of contexts, from interrogation to plea bargaining to sentencing. Unfortunately, however, the infrastructure of the criminal justice system has not kept pace with its increased volume. As a consequence, there has been a growing divide between the law on the books and the law in action. Chronic underfunding of courts, prosecutors, and defense agencies has led to a world in which case processing has trumped truth-seeking, and where rights are rarely fully realized. The contributors to this issue address the legal ramifications of many of these changes in law and practice, especially the implications of the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper expanding defendants’ ability to seek redress for significant attorney errors committed during the plea negotiation process. The contributors also venture outside the halls of the Supreme Court and into the messiness of the day-to-day operations of the criminal justice system, exploring the ways in which ‘‘the guiding hand of counsel’’ promised by Gideon is denied as a result of large-scale structural deficits in ways states appoint, monitor, and compensate defense counsel. The challenges of delivering and vindicating the Sixth Amendment right to counsel are shaped by the constitutional rules that govern the scope of that right. In the years following Gideon, the Supreme Court expanded the right to counsel beyond felony defendants and trial proceedings, and began to tackle the substance of the right as well. In Strickland v. Washington, the Court famously declared that the right to counsel was the right to the effective assistance of counsel. The Court held that the Sixth Amendment guarantees not only a lawyer with a pulse, but one whose representation is in accordance with ‘‘prevailing professional norms.’’ Although the Court recognized that counsel’s failings could violate the Sixth Amendment, it limited relief to those defendants who could demonstrate prejudice from their counsels’ errors. Under Strickland’s prejudice prong, defendants whose lawyers have failed to provide ‘‘assistance’’ within the meaning of the Sixth Amendment are left without a remedy unless they can ‘‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’’ As several of the contributors to this issue observe, Strickland’s prejudice prong has proven to be a formidable obstacle in vindicating the right to counsel. The Supreme Court has shown little willingness to soften Strickland’s prejudice requirement; nevertheless, in recent years the Court has been willing to expand the substance of the right to counsel.