The Sixth Amendment and the Right to an Attorney

Clarence Earl Gideon - petty thief and famous Supreme Court plantiff in Gideon v. Wainwright

Clarence Earl Gideon – petty thief and famous Supreme Court plantiff in Gideon v. Wainwright

After the ratification of the Bill of Rights in 1791, the first ten amendments to the Constitution became law.  Over the years, it has been the task of the federal courts (most notably the Supreme Court) to determine how to interpret the rights and protections inherent in the Bill of Rights. The Sixth Amendment to the United States Constitution guarantees, “In criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defence.” [1] What that guarantee means has evolved over the years as the Supreme Court has evaluated cases relating to this particular clause of the Sixth Amendment.

Linda Monk wrote, “The right to counsel is the most important in the Sixth Amendment, because without it the defendant is unable to assert any other rights he has.  It is almost impossible for a layperson to navigate the complicated legal system alone.”[2]  The right to counsel is a commonly known right guaranteed by the first ten amendments, as this right is often referenced on television courtroom and law dramas in the reading of the Miranda Rights to suspected criminals.  While the Sixth Amendment has been unchanged since 1791, our interpretation of the right to counsel has changed considerably.

Originally, the right to counsel was interpreted to mean that you had the right to pay an attorney to be present at trial, leaving those who could not afford an attorney unable to execute such privilege.[3] Programs to help the poor accused of crimes were implemented in cities across the country, but were largely voluntary and very limited – less than three percent of the nation’s counties even had public defender programs before 1963.[4]   Even if one were lucky enough to have free or pro bono counsel, often such counsel lacked quality or a commitment to defending the accused.  In 1930, the Cook County’s public defender’s office described its purpose as “to assist the court and to expedite guilty pleas.”[5]  While some indigent defendants would have the benefit of counsel in criminal cases, the quality and quantity of public defenders were certainly lacking in the early 20th Century.

In the 1930s, two court cases expanded the right to counsel for indigent defendants. In the landmark case Powell v. Alabama (1932), the Supreme Court ruled that defendants who were unable to defend themselves must have a court appointed attorney.  In this case, nine African American youths were accused of raping two white girls.  In several one day trials, all nine were sentenced to death (rape was a capital crime in the state of Alabama at the time).  While law required the boys had an attorney, “the attorneys did not consult with their clients and had done little more than appear to represent them at trial.”[6]  When the case was appealed to the US Supreme Court, it was decided that Alabama had violated the Due Process Clause of the Fourteenth Amendment, denying them “time and opportunity to secure counsel in their defense.”[7] With its ruling, the Supreme Court ensured that court-appointed counsel would be assured in capital cases at both the state in federal level.

Six years later, the court further expanded the right of court appointed attorneys in all federal cases.  In the case Johnston v. Zerbst (1938), Johnson was found guilty of felony counterfeiting in a trial where he represented himself.  On appeal, it was ruled that all defendants charged of federal crimes would be allowed counsel unless they specifically waived such a right.  In addition, the Supreme Court ruled that those determined unable to waive their right to an attorney due to disability or lack of competency must receive the right to counsel regardless of the defendants request.

While both Powell v. Alabama and Johnston v. Zerbst considerably expanded the right to a court appointed attorney to needy defendants in federal and capital cases, the right to an attorney was not yet guaranteed to all.  In the case Betts v. Brady (1942), the Supreme Court decided, “that states only had to appoint counsel in noncapital cases under ‘special circumstances,’ such as when the defendant was mentally handicapped or otherwise incapacitated.”[8]  However, this ruling would later be overturned after Clarence Earl Gideon would petition his felony conviction on the basis that he was denied the right to a court appointed attorney.

In 1963, the Supreme Court heard the landmark cased Gideon v. Wainwright. Gideon, a man with previous conviction, was convicted of felony breaking and entering in a Florida trial where he was forced to represent himself due to his inability to pay an attorney.  Gideon specifically asked for a court appointed attorney but was denied that right and was sentenced to five years in jail.  After his case reached the Supreme Court, it was decided by unanimous decision that the assistance of an attorney was a fundamental right, overturning the previous decision of Betts v. Brady.  Commenting on the case, Justice Hugo Black (who authored the majority opinon) opined “lawyers in criminal courts are necessities, not luxuries.”[9]  In order to ensure a fair trial, it was concluded that a defendant must have lawyer advocating for the accused.  Under the Gideon decision, the right to an attorney was extended to all accused of felonies as it was decided that the assistance of counsel was applicable to non-federal crimes under the due process clause of the Fourteenth Amendment.

Since Gideon v. Wainwright, there have been a multitude of Supreme Court cases that have furthered the rights of the accused.  The case of Escobedo v. Illinois (1964) affirmed that defendants had a right to have an attorney present during police question, and two years later Miranda v. Arizona (1966) required that police officers inform the accused that they have the right to have an attorney present during questioning, along with other constitutional rights.  However, in 1972 the court further expanded the right to an appointed attorney to any defendant faced with a charge that could result in jail time.  In Argersinger v. Hamlin (1972) a defendant by the name of Jon Richard Argersinger was sentenced to jail for a weapons charge without legal counsel.  The Supreme Court in that case, in a unanimous decision mirroring the Gideon verdict, decided that indigent defendants who were charged with misdemeanors should also have the benefit of an attorney if they face jail time.  In his Plurality Opinion, Justice William O. Douglas wrote that representation was essential to maintain the integrity of the legal system, and that without counsel the accused could face “assembly line justice.”[10]  With this ruling, the Supreme Court expanded the right of court appointed counsel to anyone who faces charges which may result in jail time whether the case be state or federal, felony or misdemeanor – leading to the common interpretation and understanding of the right to counsel clause of the Sixth Amendment in America today.


[1] U.S. Constiution, Amendment VI.

[2] Linda Monk, “Amendment VI” The Words We Live By: Your Annotated Guide to the Constitution. (New

York: Hyperion, 2002): http://ratify.constitutioncenter.org/constitution/ (accessed June 28, 2012).

[3] John R. Vile, “Fourth Amendment”, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002, 2nd. Ed.  (Santa Barbra, CA:  ABC CLIO Inc., 2003), 410.

[4] Marshall J. Hartman, “40 Years and Waiting” in The United States Supreme Court, eds. Paul McCaffrey and Lynn M. Messina (New York:  H. W. Wilson Company, 2005), 53.

[5] Ibid.

[6] “Powell v. Alabama,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1901-1939/1932/1932_98  (accessed June 28, 2012).

[7] Ibid.

[8] Monk, “Amendment IV.”

[9] “Gideon v. Wainwright,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1962/1962_155 (accessed June 28, 2012).

[10] “Argersinger v. Hamlin,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1970-1979/1971/1971_70_5015 (accessed June 28, 2012).

2 thoughts on “The Sixth Amendment and the Right to an Attorney

  1. Thank you! This was very helpful in my presentation.

  2. great post, very informative. I ponder why the opposite experts of this sector
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