Right To Have Appointed Counsel

Question 1

What did SCOTUS hold in Powell v. Alabama on p. 1017?

Answer 1

The Powell court held that “in a CAPITAL case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court—whether requested or not—to assign counsel for him as a necessary requisite of due process of law.”

Question 2

Does a defendant have a federal constitutional right to counsel in a state court?

See Gideon v. Wainwright (U.S. 1963) on p. 1020

Answer 2

YES. The Sixth Amendment guarantee of counsel is a fundamental right, per Powell v. Alabama.

Question 3

When is an indigent defendant entitled to assistance from a MENTAL HEALTH EXPERT?

See Ake v. Oklahoma (U.S. 1985) on p. 1023

Answer 3

An indigent defendant is entitled to assistance from a mental health expert—paid for by the State—when his “mental condition” is (1) relevant to his defense and (2) seriously in question.

NOTE: In McWilliams v. Dunn (U.S. 2017) on p. 1024, SCOTUS held that brief assistance from a volunteer psychologist at the University of Alabama DID NOT satisfy Ake.

Question 4

May a person be imprisoned for ANY offense—absent a knowing/intelligent waiver—if he is NOT REPRESENTED by counsel at his TRIAL?

See Scott v. Illinois (U.S. 1979) (quoting Argersinger v. Hamlin (U.S. 1972)) on p. 1028

Answer 4

NO. 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.

NOTE: In Scott, SCOTUS refused to extend Argersinger to cases where a defendant is charged with a statutory offense where imprisonment upon conviction is AUTHORIZED BUT NOT ACTUALLY IMPOSED upon the defendant.

Question 5

Why did SCOTUS refuse to extend Argersinger to cases where a defendant is charged with a statutory offense where imprisonment upon conviction is AUTHORIZED BUT NOT ACTUALLY IMPOSED upon the defendant?

See Scott v. Illinois (U.S. 1972) on pp. 1028-30

Answer 5

The central premise of Argersinger—that ACTUAL IMPRISONMENT is a DIFFERENT penalty in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.

Scott therefore held that the Sixth and Fourteenth Amendments require only that no INDIGENT criminal defendant be sentenced to a term of imprisonment UNLESS the State has afforded him the right to assistance of appointed counsel in his defense.

Question 6

Many states (43) require restitution from those convicted of crimes to pay for their public defender. To create incentives for defendants to pay these sums is to impose a jail sentence and suspend it on the condition that the defendant pay restitution plus any fines and court costs that might also be imposed. If the defendant does not pay—within whatever time period the court sets—the jail sentence can be “activated” by a showing of non-payment.

Do indigent defendants facing that sentencing structure have a right to counsel? See Ala. v. Shelton (U.S. 2002) on p. 1033

Answer 6

YES. Because defendants might later face incarceration without having had counsel at the trial where guilt was determined, Shelton held that courts CANNOT impose suspended sentences on indigent defendants without providing counsel at trial or finding waiver.

NOTE: In Shelton, SCOTUS focused on the fact that the Alabama probation revocation hearing would NOT permit the defendant to inquire into the basis of his conviction to adopt this prophylactic rule.

Question 7

What does the right to appointed counsel on appeal entail?

See Douglas v. California (U.S. 1963) on p. 1035

Answer 7

1. A State may NOT grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. See Griffin v. Illinois (a state must provide a transcript free of charge to indigent defendants when it is necessary for them to obtain “adequate appellate review of their alleged trial errors.”).
2. Douglas affirmed Griffin where the issue was whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the defendant.
3. Thus, Douglas requires appointment of counsel for indigent state defendants on their FIRST appeal as of right. The Douglas court stated that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does NOT amount to a denial of due process or an “invidious discrimination.” Absolute equality is NOT required. But where the merits of the one and only appeal an indigent has of right are decided without benefit of counsel, an unconstitutional line has been drawn between the rich and the poor.