Effective Counsel and the Sixth Amendment

by Rachel Sharma

A public defender’s office exists in every city and state in America. These attorneys are appointed to represent criminal defendants who cannot afford to pay for their own, private legal counsel [1]. While these attorneys have heavy caseloads, they are not provided the resources to give each case its due care and thus cannot provide adequate counsel to those they represent. The lack of resources of public defenders amounts to a violation of the Sixth Amendment of the United States Constitution, which guarantees a right to have the assistance of counsel.

The Sixth Amendment guarantees the right to a public trial without unnecessary delay, the right to an impartial jury, the right to know one’s accuser, the right to know the charges against oneself, and the right to an attorney [2]. One of the first cases to extend the circumstances in which there is a right to counsel was Powell v. Alabama. In 1932, the Due Process Clause in the 14th Amendment of the Constitution extended the right to counsel in the 6th Amendment to the states. It was ruled that “in a capital case, where the defendant is unable to employ counsel and is incapable of making his own defense adequately 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 [3].” The result of Gideon v. Wainwright (1963) extended this right to the assistance of counsel in the 6th Amendment, through the 14th Amendment’s Due Process Clause, to all criminal proceedings. Approximately 80% of United States defendants use court-appointed counsel in today’s era, so this decision affects a large portion of the population [4]. The result of the 1984 case Strickland v. Washington was a two-prong test for proving inadequate counsel [5]. First, The defendant must show that the performance of the appointed attorney was deficient [6]. Second, the defendant must show that the attorney’s deficient representation prejudiced the defense [7]. Later, in 2011, the case Lafler v. Cooper reached the Supreme Court. The decision of the court was that had the attorney in question presented the plea deal with effective advice on its meaning and contents, the effect on the defendant would have been less severe [8]. Therefore, the attorney was ruled at fault and the case was vacated and remanded [9]. In cases involving a claim of inadequate counsel, the second requirement of the Strickland case is the hardest to prove. “Prejudice”, when applying it in this context, means that “with reasonable probability, that without the errors of the counsel, the results of the proceeding would have been different [10]”. These cases have impacted the understanding and interpretation of the constitutional right to counsel. These cases point out an aspect of the American criminal justice system that should be remedied by showing what is not there, inadequate counsel procedures that do not fit this model. In the future, it may be remedied by a branch of government, whether that be the judicial or legislative.

These cases have led to today’s standards for inadequate counsel that are difficult to apply to this set of circumstances. The reality for public defenders in terms of pay and number of cases is astonishing. In central Oregon, public defenders are paid 33.7% less than their district attorney counterparts [11]. A study done by the Department of Justice recommends that “public defenders handle no more than 150 felony, 400 misdemeanor, 200 juvenile, 200 mental health, or 25 appeals per year [12].” Public defenders in New Orleans handled double that amount of cases in 2016 [13]. The average Kentucky public defender handled 460 cases in 2016 [14]. For public defenders in Florida, the average felony caseload was 500 [15]. A defendant could suffer because of the problems that public defenders face within the system. Recently, in the 2017 case Tucker v. State, a court ruled that ineffective counsel by a public defender was a violation of the Sixth Amendment, and that the state should remedy the situation. It states, “The issues raised in this case do not implicate Strickland. Appellants alleged systematic, statewide deficiencies plaguing Idaho’s public defense system. Appellants seek to vindicate their fundamental right to constitutionally adequate public defense at the State’s expense, as required under the Sixth Amendment to the U.S. Constitution and Article I, Section 13 of the Idaho Constitution [16].” More came to light in another case from 2017, this time in Missouri. The case, Church v. Missouri, brought up the same arguments, that public defenders did not have the time or the money to devote to each case and that defendants were paying for it with time in jail [17]. Although Tucker v. State is currently being appealed and Church v. Missouri was reversed, both of these cases point out a problem that exists today. Just because these two cases are or were under review to be reversed, does not mean that this problem does not exist in Idaho and Missouri. This specific cause of inadequate counsel has not been mentioned on the national stage at all. Therefore it cannot be put right once and for all.

For the future, the problem of inadequate counsel because of underfunded public defenders should be remedied on a national level. No one should be penalized because they live in a place with overworked public defenders. And public defenders should not have to work with low pay, difficult conditions, and the guilt of knowing they cannot devote enough time to a case. This is an aspect of American society that should be changed. This change could come from the judicial branch, through the Supreme Court, or the legislative branch, through Congress allocating more funds. Either way, this problem would be resolved and it would impact the United States in a positive way by allowing people more confidence in their public defenders and those attorneys more trust in the criminal justice system as a whole.

1 Public defender law and legal definition, https://definitions.uslegal.com/p/public-defender/

2 U.S. CONST. amend. VI.

3 Powell v. Alabama, 287 U.S. 45, 71 (1932)


5 Id.

6 Strickland v. Washington, 466 U.S. 668, 687 (1984)

7 Id.

8 Lafler v. Cooper, 566 U.S. 156, 174 (2012)

9 Id. at 175.

10 Supra note 6, at 694.

11 Aubrey Wieber, Wage Gap Leads to Unequal Representation in Criminal Cases, THE BULLETIN, July 8, 2017, https://www.bendbulletin.com/localstate/5432071-151/wage-gap-leads-to-unequal-representation-in-criminal

12 Department of Justice, National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Courts 13.12 (1973).

13 Jed Lipinski,The trials and travails of a New Orleans public defender, nola.com, Mar. 30, 2016,https://www.nola.com/crime/2016/03/new_orleans_public_defender_trials_and_travails.html

14 Edward C. Monahan, Annual Litigation Report Fiscal Year 2016, Sep. 2016, https://dpa.ky.gov/News-and-Public-Information/Documents/2016%20Annual%20Report.pdf 15 Alexa Van Brunt, Poor people rely on public defenders who are too overworked to defend them, The Guardian, June 17, 2015, https://www.theguardian.com/commentisfree/2015/jun/17/poor-rely-public-defenders-too-overworked

16 Tucker v. State, 162 Idaho 11 (2017)

17 Church v. Missouri, 268 F. Supp. 3d 992 (2017)