News Release

States Have Long Road Ahead to Ensure the Constitutional Right to Counsel, New NACDL Report Finds

Washington, DC (Oct. 26, 2016) – The National Association of Criminal Defense Lawyers (NACDL) today released a report that surveys the standards set by each of the 50 states to provide counsel in criminal cases to those who cannot afford to pay for a lawyer. The Sixth Amendment to the Constitution requires each state to ensure the right to counsel in any criminal prosecution. Prepared by John P. Gross, Assistant Professor of Clinical Legal Education & Director of the Criminal Defense Clinic at the University of Alabama School of Law, Representation in All Criminal Prosecutions: The Right to Counsel in State Courts examines how states have designed their public defense policies in light of Gideon v. Wainwright and other Supreme Court cases interpreting the Sixth Amendment's mandate. This is the third report in NACDL's series Gideon at 50: A Three-Part Examination of Public Defense in America.

"Today, more than ever, anyone accused of a criminal offense needs the assistance of a lawyer," said NACDL President Barry J. Pollack. "Prosecutors have extraordinary discretion in charging decisions, sentences are often draconian, and conviction for even minor offenses carries debilitating collateral consequences affecting a person's future ability to obtain an education, maintain employment, or receive government benefits. The final report in the Gideon at 50 series is an important look at the policies set by each of the states to fulfill the critical need for counsel. NACDL hopes that this report will be a valuable resource for litigators and reformers working to ensure full compliance with the Sixth Amendment."

"The constitutional right to counsel is a fundamental component of our criminal justice system," said NACDL Executive Director Norman L. Reimer. "People accused of criminal wrongdoing should never be left alone to face the full force of the government when their liberty is at stake or a guilty plea to any charge may be entered. This report is evidence that the realization of the right to counsel is very much a work in progress."

The report includes a map detailing the right to counsel standards in the 50 states. Among other findings, the study found that fourteen states do not require counsel to be appointed unless a defendant will actually be incarcerated, and in nine of these states lawmakers have enacted statues codifying this "actual imprisonment" standard.

On the other hand, in twenty states, defendants are guaranteed the right to counsel based solely on having been charged with a crime or based on any potential statutory sentence. Indeed, California and New York have established by statute a right to counsel in all criminal cases.

The report goes on to explain how states differ on whether they guarantee counsel at a person's initial appearance in court. In most states, "[d]efendants are typically informed of their right to counsel at a first appearance … but defense counsel is not actually present when an initial decision is made regarding a defendant's right to pretrial release."

John P. Gross, who is NACDL's former Indigent Defense Counsel, said: "While previous reports have documented the lack of funding for public defense and the systemic denial of counsel based on unrealistic income eligibility guidelines, this report reveals that many state courts and legislatures have created the framework to fulfill Gideon's noble ideal, that no one charged with a crime should be without counsel. The Supreme Court's fear that extending the right to counsel to defendants charged with petty crimes would overwhelm the states has proven to be unfounded. In fact, many states have, at least in theory if not in practice, gone beyond the actual incarceration standard and require the appointment of counsel in all criminal cases. The decision to provide counsel in all criminal cases, even those that will not result in incarceration, appears to be rooted in the recognition that defense counsel is needed to ensure due process and that the collateral consequences of a conviction are just as significant, if not more so, than spending a day in jail."

Links to this report along with Part One, Rationing Justice: The Underfunding of Assigned Counsel Systems, and Part Two, Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel, are available at www.nacdl.org/gideonat50.

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For more information about NACDL's extensive work in the area of public defense, please visit www.nacdl.org/indigentdefense.

Contacts

Ezra Dunkle-Polier, NACDL Public Affairs & Communications Assistant, (202) 465-7656 or edunkle-polier@nacdl.org for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.