What is the right to an attorney?

The right to an attorney is the constitutional guarantee that a person accused of a crime may have a lawyer to defend them, with court-appointed counsel provided free of charge if the accused cannot afford to hire one. The Sixth Amendment, ratified on December 15, 1791, declares that in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.

The protection has expanded dramatically over the past century through landmark Supreme Court decisions. Powell v. Alabama (1932), arising from the prosecution of nine young Black defendants known as the Scottsboro Boys, recognized the right to counsel in capital cases. Johnson v. Zerbst (1938) extended the right to all federal felony cases. The transformative ruling came in Gideon v. Wainwright (1963), where Clarence Earl Gideon, a poor Florida man convicted of breaking into a pool hall, wrote a handwritten petition to the Supreme Court from his prison cell. Justice Hugo Black wrote for a unanimous Court that 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. Gideon was retried with court-appointed counsel and acquitted.

The right was later extended to misdemeanor cases involving incarceration in Argersinger v. Hamlin (1972), to juvenile delinquency proceedings in In re Gault (1967), and to deportation defense in some immigration contexts under Padilla v. Kentucky (2010). The right also attaches at critical pretrial stages such as lineups in United States v. Wade (1967), interrogations in Massiah v. United States (1964) and Edwards v. Arizona (1981), preliminary hearings in Coleman v. Alabama (1970), and on appeal in Douglas v. California (1963). Strickland v. Washington (1984) requires that counsel be effective, judged by reasonable professional norms and prejudice to the defendant.

Public defender systems carry the burden of providing free representation. The federal Criminal Justice Act of 1964 created the federal public defender system, which now operates in ninety-one of ninety-four federal judicial districts. State and local public defender offices, court-appointed private attorneys, and law school clinics handle the bulk of state cases. Public defender caseloads frequently exceed recommended limits, and inadequate funding remains a chronic problem.

Defendants may also waive counsel and represent themselves under Faretta v. California (1975), although the waiver must be knowing and intelligent. Naturalization candidates should know that the right to an attorney applies in both federal and state criminal cases, and that anyone accused of a crime in the United States may insist on legal representation.