Joe Schottenfeld (University of Chicago – Law School) has posted The Forgotten Sixth Amendment: The Federal Judiciary’s Right to Counsel on SSRN. Here is the abstract:
The conventional view of the Sixth Amendment right to counsel for indigent defendants is that its enforcement depends on the political branches to implement the right by appropriating the money to enforce it. But that’s not how enforcement of the modern version of the right started. For more than twenty-five years, between 1938, when Johnson v. Zerbst established a right to appointed counsel for federal defendants, and 1964, when Congress began to fund indigent defense services, the judiciary implemented the new right by itself. Based on original archival research, this Essay recovers the judiciary’s efforts to go it alone to try to implement the right to counsel in between Johnson‘s establishment of the right and the start of Congressional funding. District court judges used their inherent authority to appoint thousands of lawyers to represent poor defendants without pay. Supplying these lawyers led judges and judicial administrators to innovate with new appointment systems and to require the participation of a wide cross section of the bar. For indigent defendants, the unfunded version of the right was limited and often inconsistent. For the judiciary, enforcing the right entailed a judiciary-wide project to fulfill the counsel requirement. This project shifted the political economy surrounding indigent defense, leading the judiciary and the lawyers it relied on to become vital actors in an ultimately successful push for funding. The judiciary’s inward turn demonstrates a model of judicial action that relies not on directing the other branches but on flexing the institutional capacity of the federal judiciary. This model invites its own questions—for example, about the nature of wide-reaching judicial projects—but it also suggests possibilities for renewed judicial efforts to improve adjudication.
Highly recommended.
Lawrence Solum