Right to Counsel for Indigent Defendants
The right to counsel for indigent defendants is guaranteed in the Sixth Amendment to the US constitution. The Supreme Court requires every state to provide attorney services to indigent defendants who cannot afford to hire a lawyer. States and counties provide counsel by contract model, assigned model, and the public defender model. The attorney fees are funded by the state, county, courts, and user fees or a combination of these.
Historical development of the right to counsel
The roots of the right to counsel for the indigents in the US can be traced back to the 19th century. In a famous case of Webb v. Baird (1853), the Supreme Court of Indiana recognized the need for the right to counsel for an indigent person who has been accused of a crime at public expense. The right was based on the tenets of a civilized society rather than a statutory requirement. The right to an attorney for the indigents in the US was appropriately established by the Sixth Amendment to the Constitution of the United States and was later vindicated by the Supreme Court in the case of Johnson v. Zerbst in 1938.
Most states in the 20th century depended on pro bono services provided by volunteer lawyers for the poor people who were accused of both misdemeanors and felonies. However, there were private programs like the New York Legal Aid Society in larger cities like Los Angeles as early as 1914. The New York Legal Aid Society provided counsel to poor immigrants when they were accused of crimes. In the famous Scottsboro case, Powell v. Alabama, the Supreme Court decided that the right to an attorney for indigents was required in every state proceedings.
However, in Betts v. Brady (1942), the Court had declined to extend the right to counsel to state capital proceedings. The Court addressed the issue later from 1963 in a series of decisions by the Supreme Court. The right to an attorney in all dimensions of state criminal proceedings was reaffirmed. In a significant decision in Gideon v. Wainwright, the Supreme Court overruled Betts v. Brady. The Supreme Court held that all indigent people accused of serious crimes were entitled to the right to counsel, which was to be provided at state expense.
In the In re Gault decision, the Supreme Court extended the Gideon decision to include indigent children during juvenile delinquency proceedings. In another case, Argersinger v. Hamlin, the Supreme Court extended the right to an attorney to cover misdemeanor proceedings, especially in cases where the loss of freedom was likely. The right to an attorney for indigent people under federal law extends to quasi-criminal proceedings, which may involve potential loss of liberty and to collateral attacks on convictions. All these cases pave the way to the modern right to counsel for indigent defendants.
The current state of the right to counsel for indigent defendants in the US
The existing right to counsel to all indigent defendants is guaranteed by the Sixth Amendment of the US constitution. Each state is required by the Supreme Court to provide an attorney to any needy person accused of a crime if the individual is unable to afford to hire one (Frederique et al. 2014). States have established public defender programs or depend on a private bar to provide attorney services. The right to counsel in many states in the US has been extended by state constitutional requirements, case law, and legislation. States organize the provision of the right to an attorney based on judicial district, counties, or states. The attorney fees are funded by the state, county, courts, and user fees or a combination of these.
Methods of providing counsel for indigent defendants in the US, their advantages and disadvantages.
The right to counsel is provided in three models, that is, assigned counsel model, public defender model, and contract model. In the assigned model, indigent cases are assigned to private attorneys on an ad hoc or systematic basis. Under the ad hoc program, the Court makes the appointment of attorneys without following specific criteria or qualifications. On a systematic or coordinated program, attorneys are selected based on qualifications and entail some level of supervision and support by administrative and regulatory bodies (Shem-Tov, 2017). In the assigned model, attorneys are paid on an hourly basis or at a flat fee per case. The advantage of the assigned model is that it is easier to get attorneys for any case. However, it is criticized for not establishing measures for control over the qualification of attorneys, mainly where the ad hoc system is used.
In the contract model, the state or county enters into a contract with law firms, attorneys, or bar associations for the provision of counsel services to needy people. The contract program is provided on the basis of fixed-price contracts and fixed-fee-per-case program. In a fixed-fee contract, the contracting attorney, bar association, or law firm accepts several cases which are not predetermined, for a specified period for a fixed fee. The contracting lawyers or law firms are responsible for the provision of support services and investigation of the cases. Fixed-fee-per-case contracts provide that the contracting individual, firm, or bar organization provide their services for a predetermined number of cases at a fixed price for each case (Shem-Tov, 2017). The cost of support services, expert witness, and the investigation is included in the contract. The fixed-price contracts are criticized for not accounting for the time, and costs attorneys incur or even the complexity of cases. The fixed-fee-per-case contracts can also be costly to states.
In the public defender model, non-profit organizations are given the mandate to provide counsel services to indigent defendants by a given jurisdiction. Attorneys are employed on a full-time or part-time basis to give representation on indigent cases (Block, 2014). The public defender model is advantageous in that reliable and professional counsel services are made available to the indigent defendants.The public-defender model is, however, difficult to manage since the state or counties do not provide adequate resources; therefore the effective provision of counsel services is undermined.
New methods proposed
New and more innovative models of providing counsel to indigent defenders should be adapted to reduce delays and ineffectiveness of the existing models. The first approach is to adapt the insurance model, which guarantees the maximization of choices and minimization of the risks or problems for all parties (Frederique et al. 2014). Another proposed model is the deregulation model, which will address the administrative and organizational issues of the indigent issues. The last proposed model is the voucher model, which will permit defendants to choose among service providers and reduce federal control over providers.
In conclusion, the right to counsel for the indigent defendants in the US is guaranteed by the Sixth Amendment to the United States Constitution. The right developed through various Supreme Court decisions over various years. The right to counsel for indigent defendants is provided in the contract model, the public defender model, and the assigned model. However, new and innovative models like the insurance model, deregulation, and the voucher model need to be adapted to address delays and incompetence of existing models.
References
Block, L. M. (2014). Assignment of Counsel for Indigents. The Encyclopedia of Criminology and Criminal Justice, 1-5.
Frederique, N., Joseph, P., & Hild, R. C. C. (2014). What is the state of empirical research on indigent defense nationwide: A brief overview and suggestions for future research. Alb. L., Rev., 78, 1317.
Shem-Tov, Y. (2017). Make or Buy? The Provision of Indigent Defense Services in the US. The Provision of Indigent Defense Services in the US (December 4, 2017).