Evolution of the Right to Counsel, Expansion of the 6th Amendment

Oct 31, 2010
David J. Shestokas

Scottsboro Boy Andy Wright - UMKC

Thanks to television everyone is familiar with the extensive right to an attorney and the fact that one may be appointed. That has not always been the case.

The Sixth Amendment was ratified in 1789. The provision that gives rise to the section of the Miranda warnings advising someone under arrest of his right to an attorney is as follows:

“In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.”

For 143 years that was generally understood to allow a defendant to employ a lawyer in his defense. The state was not required to provide counsel for an indigent defendant. There was no belief that someone was entitled to a competent lawyer. In 1932, the understanding of that Sixth Amendment provision began an evolution that would go in those directions, leading to the right to an attorney being included in the Miranda Warnings.

The Scottsboro Boys and the Sixth Amendment

In 1932, the Supreme Court decided the case of Powell v. Alabama. It was the case of the “Scottsboro Boys”. A group of nine young black men were accused of raping two young white women in March, 1931. The accusations grew out of an altercation a group of blacks had with a group of whites, when both groups had hitched a ride on a freight train. The blacks had thrown the whites off the train, but when the train was later stopped based upon a telegraph message, nine blacks were arrested for the altercation, taken to the Scottsboro, Alabama jail and once there were identified by a white woman as having gang raped her and another.

Trials began a mere twelve days after the arrest. They had been given a 70 year old real estate attorney and an attorney from Tennessee who was not a member of the Alabama bar. The attorneys did little cross examination and offered no closing arguments. In very short order, eight were convicted of rape and sentenced to death. The ninth was a 12 year old boy whose first case ended in a mistrial. They had never been given the chance to even attempt to select counsel of their choice.

It was this case that in 1932 that began the expansion of the Sixth Amendment’s right to counsel. The Supreme Court determined that the defendants had not been provided any opportunity to obtain counsel of their choice an overturned the convictions. The lawyers had been incompetent and the defendants had not had the opportunity to seek counsel of their choice. The Sixth Amendment was combined with the Fourteenth Amendment’s Due Process Clause, and the proceedings against the Scottsboro Boys were found to be fundamentally unfair.

The Right to an Attorney in Federal Prosecutions

In 1934 two enlisted United States Marines were charged with passing four counterfeit $20 bills. In Federal Court, the Marines pleaded not guilty but told the judge they could not afford an attorney. They were tried, convicted and sentenced without a lawyer. In the case of Johnson v. Zerbst, the Supreme Court’s 1938 decision now required the appointment of counsel for defendants in Federal criminal trials, but the right to appointed counsel in state prosecutions still did not exist, absent special circumstances such as existed in the matter of the Scottsboro Boys.

Special Circumstances and Death Penalty Cases

Over time, the Supreme Court would determine that in addition to special circumstances that the states were required to appoint counsel for defendants facing the death penalty. There was not, however, the hard and fast rule that exists today requiring appointed counsel for an indigent defendant in every state prosecution.

While inch by inch the circumstances and situations in which a state criminal defendant was entitled to appointed counsel had grown, it was not until 1963 that it became clear that indigent defendants were entitled to appointed counsel in all situations.

The Right to Counsel in State Prosecutions

On June 2, 1961 $5 and some beer and soda were taken from a pool Room in Florida. A 22-year-old resident who lived near the pool room, told police he had seen Clarence Gideon leave the pool hall with a bottle of wine and his pockets filled with coins, enter a cab and leave.

Gideon was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor that was a felony. Gideon appeared in court indigent and without a lawyer, and asked the court to appoint counsel for him. His request was denied. Gideon represented himself was found guilty and sentenced to five years in prison.

From the Florida State Prison, reading law in the prison library, Gideon used a pencil prison stationery to appeal to the U.S. Supreme Court. He argued that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states through the Fourteenth had been violated.

In 1961 the Supreme Court agreed with Mr. Gideon, and overturned his conviction. In doing so, the Court said that the Sixth Amendment right to counsel applied to all state criminal prosecutions, and that the states were obligated to appoint counsel for indigent defendants. Gideon was later retried, this time with a court appointed attorney, and a jury found him not guilty in less than an hour.

Bill of Rights to Scottsboro to Gideon

It was 31 years after the Scottsboro Boys and 174 years after the Sixth Amendment was ratified that it became clear that all criminal defendants were entitled to a lawyer, even if they couldn’t afford one, in no small part thanks to Mr. Gideon’s prison pencil and paper.