Understanding Our Right to Counsel: How the U.S. Stacks Up Against the World

Any law student or crime-show viewer is familiar with the Miranda warning: A defendant has a Fifth Amendment right to remain silent and, under the Sixth Amendment, a right to representation by a lawyer at government expense.

But that entitlement comes with huge loopholes. For one thing, the right to free counsel applies only to criminal cases. That leaves out renters contesting evictions or parents fighting for custody rights. Even for criminal charges, the U.S. Supreme Court allows for taxpayer-funded defenders only if the possible penalty is jail or prison, not fines. The law also denies access to public defenders for civil cases that could end in incarceration. That protection most notably skips poor Americans who end up in jail for failing to pay traffic fines or child support.

Those deep flaws in the U.S. justice system are compounded by entrenched discrimination against minorities, says Peter Joy, a professor with Washington University School of Law. In a post for @WashULaw, the university’s online Master of Legal Studies program, Joy argues that American courts’ ability to ensure right to counsel and fair trial “is in disarray.”

The law “is stacked against you if you are a person of color or are poor and is doubly unjust if you are both a person of color and poor,” Joy says.

A global index of law and justice bears out his assessment. The U.S. lags many of its peer nations in providing legal services to the poor. The World Justice Project’s 2016 Rule of Law Index puts the U.S. at No. 18 out of 113 countries on how well its laws and institutions work for the general public. The United States ranks behind not only the vanguard democracies in Scandinavia and Europe but also Estonia and the Czech Republic as well.

The U.S. is especially dismal in ensuring civil justice, a measure of how easy and affordable it is for citizens to get legal help with noncriminal matters. Twenty-seven countries, including Bosnia and Botswana, rank higher in that category. The score for the U.S. – 0.41 out of 1 – puts it in the same company as Nepal, Kenya, Egypt and Bangladesh, and just ahead of Afghanistan.

In his research paper, “Unequal Assistance of Counsel,” Joy contends that too many Americans who lack financial means are denied justice. The main culprits: overworked public defenders and a high bar for proving ineffective counsel that “tolerates bad lawyering.”

Joy identifies several other systemic reasons behind the disparity in justice by race and income. In the U.K., for instance, the budget for public legal defense is 1,000 times higher per person than in the U.S. The U.K. also spends much more on public defense than on prosecution. In the U.S., it’s the opposite.

The inadequate spending on public defense, Joy says, reneges on the constitutional guarantee of equal protection under the law. In many other parts of the world, free counsel for low-income people is deemed a basic human right, he added.

What’s more, the police and prosecutors in the U.S. go after African Americans in disproportionate numbers. That’s true even after adjusting for different rates of criminal offenses between African Americans and white Americans.

In his paper, Joy offers potential solutions to level the legal “double standard.” The obvious answer is to boost spending on legal aid. Another is to shift the burden of proof back to the government to show that an ineffective public counsel did not harm the accused.

Joy also argues for going far beyond that. He says public defenders ought to invoke their code of ethics and refuse excessive cases. And he would like to see the whole field mount a legal challenge against unreasonable workloads.

“The only solutions are to resist business as usual and seek change,” he says.

For more information and infographics on this topic, visit The Next Frontier in the Criminal Justice Conversation from @WashULaw’s Master of Legal Studies program.

Melissa Thompson
Melissa Thompson writes about a wide range of topics, revealing interesting things we didn't know before. She is a freelance USA Today producer, and a Technorati contributor.