Right to Counsel, But No Right to Have it PAID For
Buckeye State Blog attacked me yesterday for arguing that it was the courts, and not the US Constitution, which granted the right to indigents to have their legal services paid for. Click here to read it.
Yesterday, I argued that it isn’t a constitutional right and that those who commit crimes that are eligible for the death penalty shouldn’t have their legal services paid for. That is simply my public policy position. I probably shouldn’t have deleted my post, but I didn’t have time yesterday to defend myself. Today, I do.
However, in a weak attempt to try to refute what I said, Buckeye State Blog posted the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
However,the right to assistance of counsel is NOT the same as the right to have that assistance paid for on the taxpayer dime.
In fact, it wasn’t until the US Supreme Court, in Gideon v. Wainwright (1963), that the US Supreme Court provided this “right” to defendants, and, in an act of judicial activism, said that this amendment provides legal counsel, for free, to those who can’t afford it. In addition, it was through the Court’s interpretation that the Bill of Rights applies to the states through the Fourteenth Amendment, that the states had to provide counsel at state expense in all criminal prosecutions in state courts.
Before that case, it wasn’t a right. There are examples of where federal law did provide for the appointment of counsel in capital cases as early as 1790, but the law certainly didn’t extend to all criminal cases.
Also, it appears that this seminal case in this area is Powell v. Alabama, a 1932 Supreme Court case. The Court wrote, “we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law * * *.” 287 U.S. 45, 71.
So as you can see, the right to free counsel is a right granted by the courts. I’m correct, and Buckeye State Blog is wrong. The end.
No, you’re still wrong. “In a time before there were public defenders, young inexperienced attorneys were often ordered by courts to defend indigents pro bono, and in that capacity, Foltz saw firsthand the inequitable results of that crude system.”
As guaranteed by the Constitution, the right to counsel was always protected, but they just forced attorneys to do the work for free, as Texas still does. Now, if you are an attorney working on the biggest case of your life, and you get a call saying you need to take a death-penalty case for free, can you concede that the quality would suffer? Gideon showed the worst case scenario.
You call this judicial activism? To see the US Constitution violated and make a ruling in line with it? So is your idea of judicial activism that if the courts do something you disagree with? Why even have courts if they can’t rule on something so blatantly unconstitutional?
Our founding fathers, who protected the right to free speech, which allows this blog to exist, who protected the right to bear arms and form militias, also saw the need to keep the system of justice fair, as it would be the basis of our new country.
America is an idea, and it must be protected. Our armed servicemen and elected officials swear oaths to defend the Constitution of the United States, not the country itself. They defend the idea of America.
So your argument that if people are too poor to afford attorneys they shouldn’t commit crimes is half-baked.
Now I understand your reluctance to use tax dollars for this service, but wouldn’t you rather have a team of attorneys that are committed to defending the rights of the accused rather than pulling “for-profit” attorneys away from their caseloads and dumping the needs of the indigent on them? Wouldn’t you say that would be a better system? Someone should pay for those public defender’s time and effort.
It’s what keeps our system going, otherwise, we live in a tyranny, where people can just be thrown to a kangaroo court and left to the mercy of the system.
You’re still wrong.
I’m sure that most attorneys would prefer a public defender system and would agree it provides a more robust defense.
You also say this… “Yesterday, I argued that it isn’t a constitutional right and that those who commit crimes that are eligible for the death penalty shouldn’t have their legal services paid for. That is simply my public policy position.”
Well, you’re incorrect on that point, as your argument concedes. It is a constitutional right, and BSB’s argument proved that. Prima Facie. If you don’t know what that means, and it seems as if you have a limited grasp of the law, here you go:
“Prima facie is a Latin expression meaning “on its first appearance”, or “by first instance”. It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact.”
Nice try, Matty, but you’re moving the goalposts. Yesterday, you said that the right to counsel was a byproduct of an activist court which had no constitutional underpinnings. Now, after you’ve scrubbed your own post, you’re claiming that you argued that there is no constitutional foundation for indigent defendants to have paid counsel. That’s not what you said yesterday, and you know it.
You’re changing what you were called out on and declaring victory by nothing more than your own fevered imagination. If you want to argue that the penumbra of privacy rights found by the Court have no explicit constitutional underpinnings, that’s a scholarly debateable topic. But you said that the constitution does not provide indigent defendants with the right to counsel. And you are wrong. And the fact that you’ve now had to scrub your post and lie about what you said is the strongest evidence that you know how wrong you were.
What you have to remember are your own words “Yesterday, I argued that it isn’t a constitutional right and that those who commit crimes that are eligible for the death penalty shouldn’t have their legal services paid for. That is simply my public policy position.”
With the AND you are making two separate argument clauses, One: It is not a constitutional right, and TWO: those who commit crimes shouldn’t have their legal services paid for. Or do you mean only Death Penalty cases? So if I jaywalk, I can get counsel, but if I kill someone, then I’m on my own?
Do you even re-read stuff before you click submit? Or are you just sloppy.
Let’s apply your impressive legal acumen to the rest of the Sixth Amendment.
If “the right to assistance of counsel is NOT the same as the right to have that assistance paid for on the taxpayer dime,” then:
- The right to [a speedy and public trial] is NOT the same as the right to have that [trial] paid for on the taxpayer dime.
- The right to [an impartial jury] is NOT the same as the right to have that [jury] paid for on the taxpayer dime.
- The right to [to be informed of the nature and cause of the accusation] is NOT the same as the right to have [a prosecutor assemble that information] on the taxpayer dime.
Suddenly it all makes sense. We’ve got a crime problem; so let the free market sort it out.
Ken Lay can pay for the lawyer, prosecutor and judge that he wants, and homeless people can panhandle from the county jail until they have enough to afford a discount judge and jury.
That’s probably a lot closer to what the Founders were talking about than the unanimous decision in Gideon v. Wainwright.
[…] Matt disagrees, not surprisingly, with that interpretation of the constitution and argues that the state should not pay for legal counsel. […]