Biden’s Renter’s Bill of Rights: Is it Time for the Right to Counsel to Evolve?
He who represents himself in court (and let’s be honest — it is usually a he) has a fool for a client, the saying goes. Thankfully, the right to counsel is one of the most well-known and fundamental rights in the US Constitution. It’s right there in every episode of Law & Order, right around when the perp’s head is pushed down as he is hustled into the back of the cruiser. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.
Like most things law-related, it’s not that simple.
Yes, the Sixth Amendment assures a right to counsel: In all criminal prosecutions, the accused shall enjoy the right to [a bunch of stuff] and to have the Assistance of Counsel for his defence. Unnecessary capitalization and archaic spelling notwithstanding, the language seems cut and dried.1.
Not so, said the Supreme Court of the United States as recently as 1942. In Betts v Brady, a Maryland man was refused counsel for his felony charges and wound up in prison despite his best efforts at self-representation. He filed a writ of habeas corpus asserting his right to counsel and took his case to SCOTUS. The Court sought to answer the question of whether assistance of counsel was “so fundamental and essential to a fair trial” that denial of the same amounted to denial of due process under the 14th Amendment. They determined that it did not, declaring outright that “appointment of counsel is not a fundamental right, essential to a fair trial.”
Twenty-one years later, a Florida man (hurray for Florida man) named Clarence Gideon, also convicted of a felony after being denied an attorney, tried making the same argument. This time, he found a SCOTUS bench more sympathetic to his pleas. This, of course, was the benchmark case of Gideon v Wainright, which overruled Betts and held the right to counsel provided by the 6th Amendment was applicable to the states via the 14th.
…reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society… That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.
So, those in America who are accused of a crime have a right to counsel. If you cannot afford one, the court will appoint one for you at no cost. And that’s that.
Except it’s not that simple, even now. First there are those operative words: “if you cannot afford one,” and interpretation of that phrase differs by jurisdiction. Sure, if you lose your job because you go to jail and you have zero income, you will likely qualify. But when I was practicing in the criminal law world, anyone making much more than minimum wage was disqualified in my jurisdiction. Assets were taken into account as well; is your car worth X dollars? You could sell that to pay for your lawyer, ergo you are not indigent. Your average middle class worker does not have $5,000-$10,000 laying around to retain private representation, yet they would not be eligible for court-appointed counsel.
There are other rules, again varying by jurisdiction. Not all crimes are jailable; nevertheless, they are crimes. In West Virginia, non-jailable offenses do not qualify for court appointed counsel. Speeding is a crime that is typically not punishable by incarceration, and few would seriously argue that an accused speeder should be appointed a lawyer. But what if this ticket is the last straw before you lose your license? And there other, more serious “minor” offenses that do not carry potential jailtime. First offense shoplifting of an item under $500, for example, is not a jailable offense in West Virginia. An accused shoplifter is thus not entitled to counsel, despite the damage a conviction like that can do to a person’s prospects in life. The same is true for a person under 21 charged with DUI – a serious conviction, without question, and one that does not carry jail time nor trigger a right to counsel in West Virginia.
What’s the point here?
Well, it’s just a little primer on how something as seemingly axiomatic as the right to counsel is not nearly as absolute as one might believe. Nevertheless, the White House recently floated a proposal that would extend this right to other indigent folks who are not charged with a crime – particularly, those facing eviction. The “Blueprint for a Renter’s Bill of Rights” proposes that “If an eviction is filed, tenants should be given 30 days’ notice of an eviction action and the right to counsel during an eviction proceeding.” This is not unheard of; there are a few states and local jurisdictions who already have this protection in place.
It sounds pretty good, to those of us with a bent toward social programs to help the poor (liberals, if you will); shelter is a necessity of life and the courtroom machinery is not designed to make it easy for a layperson to navigate. Many apartments and homes are not owned by mom and pop landlords but by large companies who can afford attorneys to handle what is for them a routine experience. It’s not so routine for the person who is threatened with eviction, and the help of a lawyer can go a long way toward a more favorable outcome, be it a rescinded eviction notice, negotiated reduction in back rent, or simply more time to find a new place.
In practice, however, I am skeptical, mostly because of how the system works for criminal defense. Lawyers who do court appointed defense are paid very little, especially in comparison to the work involved. To make a career out of it is difficult. It’s a labor of love and for many lawyers a calling – one I consider the highest in my profession. But you won’t get rich doing it. To do it well takes a lot of time, effort, resources, and intellectual – if not emotional – investment. In a system in which cattle-call dockets are the norm, it is simply impossible for overworked, underpaid public defenders to give every case the diligence it deserves. That’s why trials are the exception, not the norm. Plea bargains are the norm.
And if we can’t even fully guarantee those facing jail or prison the time and dedication their cases demand, I wonder how we are going to add on to it?
Legal Aid already does this work, and many firms offer pro bono assistance programs. But they are overwhelmed. How do we put in place a system for these cases like we have for criminal defense? Imperfect as it may be, there is at least a system. There has to be a mechanism for assigning cases, some incentive for lawyers to accept them (i.e., someone has to pay,) and even if lawyers are willing to take a case here or there for free, demand is likely to overshoot supply.
When the subject of socialized medicine comes up, someone inevitably says “you are not entitled to the free labor of others.” Criminal defense attorneys can tell you, this is not true. The Constitution and the Supreme Court say that people are entitled to our services in criminal cases.2 There are a lot of people in need of legal services who can’t afford to hire a lawyer. What about divorces and custody cases when Legal Aid can’t or won’t help? The consequences in those cases can be quite significant as well. Where is the line?
I am not proposing a solution, nor am I completely unreceptive to the idea of some sort of broader system of indigent representation. I just want the powers that be to make sure they understand what they’re proposing.
There’s a first time for everything.
- To be fair, the Bill of Rights says you have a right to an attorney; it does not say “for free”, which is an argument made to me by a lawyer who used to be very prominent on Twitter until they were doxed and run off the platform.
- It’s not entirely voluntary, either. Yes, most court appointed attorneys have asked to be placed on an appointment list and there are public defender offices; however, judges have the power to order any attorney practicing in their court to take on a criminal defense case.