The Sixth Amendment provides that criminal defendants have the right to a lawyer. This right comes into effect as soon as the suspect becomes a defendant, i.e., when they are charged with a crime. However, this right to counsel hasn’t always been so clear. Since the right to counsel became guaranteed, courts have struggled determining the extent to which the right is available to indigent defendants (a defendant unable to afford an attorney).
To determine whether the right to counsel extends to a given circumstance, the U.S. Supreme Court employs a due process test. The Court considers the totality of the circumstances and determines whether the refusal to appoint counsel was so offensive to the common and fundamental ideas of fairness as to amount to a denial of due process.
For example, in Gideon v. Wainwright, a guilty defendant appealed to the Supreme Court arguing that the Illinois Supreme Court violated his due process rights when it refused to appoint him counsel after he submitted to the court that he could not afford an attorney. Reversing the lower court’s decision, the Supreme Court held that the right to be appointed counsel is a fundamental right and to deny the appointment of counsel would violate that fundamental right and lead to an unfair trial.
In Argersinger v. Hamlin, the supreme court of Florida tried to place a limit on this right by refusing the appointment of counsel to petty crimes with potential sentences of less than six (6) months. On habeas corpus to the Supreme Court, the Court dismissed this sentencing guideline for determining when the right to counsel is appropriate and instead held that the right to counsel is a fundamental right and applicable to all criminal prosecutions. The Court reasoned that given the complex constitutional questions in all criminal cases, misdemeanor or felony, and the guarantee to a fair trial, the right to counsel must be available in all criminal prosecutions. In short, the Supreme Court held that when a defendant is charged and facing any sort of imprisonment, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
The guaranteed right to counsel goes one step further. What happens to the indigent defendant who has already been convicted of a crime and is now back in court for a parole or probation matter? The defendant still faces the possibility of imprisonment in these circumstances, so would providing the right to counsel in parole or probation be in line with the Argersinger v. Hamlin holding?
The answer: it depends. The U.S. Supreme Court in Gagnon v. Scarpelli was faced with this issue and held that the right to counsel in parole/probation hearings depends on the matter at hand and must be determined and afforded on a case-by-case basis. The Court, however, was kind enough to give a circumstance when such counsel should be afforded: if the defendant requests counsel and later claims he didn’t commit the probation violation, or he did and the violation is undisputed but there were extenuating circumstances for doing so and the assistance of counsel would help him present these circumstances, then he must be appointed counsel. Thanks to a trial lawyer with our friends at Eglet Adams for their insight on the Sixth Amendment right to counsel. If you are facing a criminal trial, contact a lawyer located near you for representation immediately.