“Small Threats” to the Right to Counsel Are a Big Deal


This month marks 45 years since the passing of Chief Justice Earl Warren, who is remembered for promoting fairness in the justice system, including the Gideon v. Wainwright decision in 1963 requiring states to provide counsel for those who could not afford it. This decision bolstered the importance of effective counsel as part of our Sixth Amendment right to representation. Today, legal representation remains inadequate due to attorney shortages, a lack of funding, and no workload limits. The quality of public defense often suffers, forcing public defenders to decide between caseload efficiency and meaningful representation (see a recent blog post on this subject here).

The Justice Programs Office (JPO) Right to Counsel National Campaign team is working to raise awareness about these systemic problems and develop a vision of an effective public defense system. Threats to the right to effective counsel are manifold, however, and they appear subtly throughout the justice system. Over the past two months – my first months at JPO – threats tangentially related to the right to counsel have popped up at every turn. I’ve wrangled three here for you to consider.

  1.  Accessibility Issues in Rural Areas

On June 27th, I participated in a National Association for Court Management (NACM) webinar “Courts Need to Enhance Access to Justice in Rural America,” focused on the distinct challenges facing rural courts. Most importantly: a lack of attorneys, technology, and resources. For example, in rural North Dakota, there are on average just 1.3 attorneys for every 1,000 people.

As our Right to Counsel team discussed in a meeting with court administrators and judges this May, ensuring effective assistance of counsel and improving caseflow management can – and must – be twin goals.

NACM offers several solutions to the lack of legal representation including: federal student loan relief to encourage lawyers to move to rural areas; limited scope representation for attorneys; programs to train paralegals so they may provide inexpensive legal services where attorneys are lacking; “circuit riding,” or traveling judges and staff; and video arraignments. Investment in practical solutions for problems like these is paramount to ensuring access to justice across the US.

  1.  Incarceration Without Access to an Attorney

The right to counsel made its second appearance during my recent work tracking community supervision-related legislation in California. Enacted July 1st, AB 597 extends the use of “flash incarceration,” a sanction used almost exclusively in California, whereby parole and probation violations lead to a short detention in county jail (usually one to ten days) without a hearing. By eliminating the need for a formal revocation proceeding, the sanction drastically reduces the revocation timeline.

Proponents of flash incarceration argue that it is less punitive than longer revocations, preventing disruptions from work and home. While shorter revocations are clearly less punitive, the use of flash incarceration causes concern as a person’s liberty can be taken without a hearing or access to an attorney.

The bill’s opponents, which include the ACLU, claim that flash incarceration raises “serious due process concerns,” that continue a “trail ‘em, nail ‘em, and jail ‘em” mentality. Getting rid of revocation proceedings means that defendants can go from “outside” to “inside” without any contact with an attorney. Defendants must waive their right to a court hearing for flash incarceration to take effect, but this decision too is often made without legal counsel.[i]

  1.  Not Discussing Collateral Consequences with an “Informed” Client

I came across a third threat to the right to counsel in the US Commission on Civil Rights’ new report, Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities.[ii] I was struck by the similarities between the Commission’s comments on collateral consequences and our discussion of the right to counsel. Collateral consequences are the myriad civil repercussions that can result from criminal convictions (see a recent JPO blog post here).

Because there are no legal requirements for prosecutors, judges, or defense counsel to notify defendants about civil consequences, defendants are often ill-informed about these repercussions. The report repeatedly recommends the incorporation of collateral consequences into counseling, plea bargaining, and sentencing considerations. Without this incorporation, unaddressed collateral consequences may undermine the effective assistance of counsel.

While there are no system-wide requirements to counsel defendants on collateral consequences, an important exception results from the 2010 US Supreme Court case Padilla v. Kentucky: counsel must inform a client whether a guilty plea may result in deportation. According to the Commission, the Padilla decision is important because it acknowledges the relevance of collateral consequences to a defendant’s “informed decision.”[iii]

Executive Director of the Collateral Consequences Resource Center Margaret Love argues that, in relation to the Sixth Amendment, the logic of Padilla extends to many other collateral consequences.[iv] If this perspective gains traction, there are significant implications for the role of defense counsel in regard to collateral consequences.

In discussing problems with the right to counsel, we often discuss a lack of resources: defendants don’t have enough; local courts don’t have enough; public defenders certainly don’t have enough. This is all true – but I have made the mistake of assuming that resources are all monetary. If someone lives 100 miles from the nearest attorney, they lack resources; if someone decides to plead guilty without being informed of the repercussions to Supplemental Nutrition Assistance Program (SNAP) benefits, they lack resources. The right to representation must include equal access to resources across the board.

This April, US Supreme Court Justices Thomas and Gorsuch revisited Gideon v. Wainwright, suggesting that the 1963 decision may have gone beyond the constitutional meaning of the right to counsel. This is a serious warning bell: if Gideon skepticism gains momentum in the Court, the full extent of the right to counsel may be under threat. The path to truly effective assistance of counsel includes many small trip hazards as well, including regional access, threats within the community supervision framework, and unplanned civil collateral consequences. A clear understanding of all these threats is the first step to finding solutions, and we must remain vigilant to ensure the meaningful implementation of our constitutional right to counsel.

[i] ACLU of California, “Public Safety Realignment: California at a Crossroads” (March 2012): 37.

[ii] US Commission on Civil Rights, “Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities” (June 2019).

[iii] Commission, “Collateral Consequences,” 32.

[iv] Margaret Colgate Love, “Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation,” St. Louis Public Law Review 30 (2011): 1.