“… You have the right to an attorney…”

Banner and gavel


My colleagues here at the Justice Programs Office (JPO) will cringe when they see this, but I sometimes hear clips from the old TV show “Law & Order” when we talk about the right to counsel. Bear with me, please, but for a long time I thought Miranda warnings and the right to counsel were synonymous. And though I now know that not to be true, when we have these conversations I still can’t help but hear the echo of so many detectives in so many episodes saying, “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” Law & Order was my grandmother’s favorite show—she loved Lennie Briscoe—and I spent a lot of time watching it with her as a teenager. One of the consequences of hearing law enforcement officers on TV tell every person they arrest that they have the right to an attorney and that one will be provided if need be is that I—and, I suspect, many others—think that’s how the American justice system works. Every person accused of a crime has access to defense counsel.

But it isn’t, and they don’t. When Americans are arrested, they often don’t have access to a lawyer. Others who do have a defense attorney often find that he or she is so overworked and has so few resources that he or she cannot provide effective counsel. My colleague Genevieve Citrin Ray often asks, “If you were arrested and charged with a crime, would you know what to do?” I wouldn’t, and so I would want a lawyer to help me figure that out and guide me to the best possible outcome. But what if I couldn’t afford one?

What if I were one of those Americans waiting in jail as long as six months to have a lawyer assigned to me and have a hearing held? What if I were in a state where public defenders are so overburdened that in one jurisdiction they spend as little as seven minutes per case, and that case was mine? What if I lived in a state where public defense caseloads range from 500 to 900 cases per year?

It’s no secret that the American system of justice is flawed and needs reform. But what is particularly surprising to me about all this is that the right to counsel is a constitutional right. So, while I was mistaken in thinking a Miranda warning is actually a law, I was not mistaken in thinking the US believes at its core that all people charged with a crime should have access to the assistance of counsel.

How is it that a constitutional right is not being upheld in courts across this country? The Right to Counsel (R2C) National Campaign was founded to address this serious problem and to spur change. 

Of course, if people don’t know there is a problem, they won’t support or be part of the solution. JPO, on behalf of R2C, conducted a year-long opinion study to find out how Americans view public defense and how much they know about their right to counsel. It found that few participants knew that the right to an attorney stemmed from the Constitution; even fewer knew that it is a Sixth Amendment right. Most, like me, instead confused it with the Miranda ruling by the Supreme Court, which established the requirement that accused people be informed of their rights. (This is actually what Lennie Briscoe is doing when reciting, “You have the right to an attorney.”) The study also found that the public supports public defense and believes that our current system is inadequate.

One of the most fascinating pieces of the study is what it revealed about what Americans value. Which word, phrase, or argument below sticks in your mind and resonates with you?

Or is it a matter of fairness? Does it matter to you that all criminal defendants need a lawyer to have a chance of a fair and just outcome in court? In other words, do you believe fairness requires that all accused persons have access to a competent attorney to represent them?

Or do you find the idea that the quality of justice a person receives should not be determined by how much money a person has more convincing?

Or is it important to you that providing competent legal representation means alternatives to incarceration are considered more often for poor people accused of less serious crimes, something that reduces the unfairness of the system, not to mention the expense to taxpayers of sending people to jail for minor crimes?

No matter the word choice or the argument you find most compelling, I hope that you will join us in drawing attention to this crisis, correcting misperceptions, and supporting efforts to reform public defense in a way that fulfills a constitutional mandate and a fundamental American value.

To learn more, visit http://www.rtcnationalcampaign.org/.

Dr. Elizabeth Krempley is the associate director for communications at the Justice Programs Office. You can find her on Twitter @EKrempley