Right to Counsel Under Siege: Requiem for an Endangered Right?

• NCJ Number: 136969
• Journal: American Criminal Law Review Volume: 29 Issue: 1 Dated: (Fall 1991) Pages: 35-106
• Author(s): A Garcia
• Date Published: 1991
• Length: 72 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

With a few notable exceptions, the U.S. Supreme Court's recent sixth amendment jurisprudence has been marked by doctrinal inconsistency and a failure to adhere to the core values embedded in the amendment with respect to the right to counsel, confrontation, and compulsory process.

Abstract

The Supreme Court's reliance on a crime control ideology, which stresses efficiency rather than the core ideal of a fair trial, suggests a curtailment of rights that the sixth amendment is designed to protect. This outlook is evident in decisions which adversely affect a defendant's right to select private counsel of choice and infringe on this right by allowing the government to strip defendants of the right to choose private counsel through the pretrial forfeiture of allegedly "tainted" (i.e., drug-related) assets. The efficiency perspective is also conspicuous in the narrow construction of applicable criteria employed to resolve ineffective assistance of counsel claims. Several discrete themes surface from the Supreme Court's current treatment of the right to counsel. The court has demonstrated a concern for efficiency and crime control in determining suitable parameters of the right to counsel. Moreover, it has denigrated dignitary values which are deeply rooted in the sixth amendment and the right to counsel. In addition, it has improperly relied on ethical standards to thwart claims propounded by criminal defendants based on the right to counsel. It is concluded that the Supreme Court's recent doctrinal approach to the right to counsel is based on ideological and administrative expediency and reflects a myopic view of the practical and symbolic purposes the right to counsel fosters in the criminal justice system. In essence, the Supreme Court has adopted the tenet that defendants possess a revocable privilege to counsel rather than a fundamental constitutional right. 474 footnotes