You have the right to an attorney...

Hello Street Law Advocates,
 
Generally, when people think of the criminal justice system, one of their first ideas is that they have the right to a lawyer during the criminal justice process. However, this right is not as absolute as one might think. When imprisonment is not being imposed, there generally is no right to counsel.[1] This means that a court can try you for an alleged crime without an attorney present, so long as they do not impose a prison sentence.[2] This however is not as straight up of an analysis. Even though a lot of charges have some sort of incarceration penalty, the possible penalty is not what decides the right to counsel. 

Instead, the analysis is backward-looking. 

Only if incarceration is actually imposed is the right to an attorney granted, meaning that you are not entitled to an attorney when the court imposes a fine. [3] Additionally, there needs to be a finding that you are indigent, or not able to afford an attorney for the court to appoint you one.[4] With the high cost of litigation, however, most people meet the indigency definition because the average hourly cost of an attorney is too high for the average American to pay. 

The idea that the right to affordable counsel is not guaranteed across the criminal justice system begs the question — does this principle truly progress ideas of fairness when considering the impact certain charges can have socially and economically? 

For example, a defendant who is convicted of driving under the influence of alcohol (DUI), and who is not sentenced to imprisonment has no right to an attorney when the court takes on their case. The defendant will have the social stigma of receiving a DUI and will have a conviction on their record which can be used to calculate a harsher sentence for other criminal behavior, yet they do not have the guaranteed right to an affordable attorney. Additionally, this conviction can result in the deprivation of driving rights, which will affect a defendant's job and everyday life. Sure, it would be burdensome on the criminal justice system to ensure realistic access to counsel for every indigent defendant for every criminal charge to have the right to counsel, but in a system that revokes rights, does anything less realistically comply with notions of fairness and justice?

Why can’t we connect the right to affordable counsel with any penalty that has unfair collateral consequences associated with a criminal conviction regardless of an imposed prison sentence? 

Food for thought.


[1] Scott v. Illinois, 440 U.S. 367 (1979).
[2] Id.
[3] See Powell v. Alabama, 287 U.S. 45 (1932); Scott v. Illinois, 440 U.S. 367 (1979). 
[4] Gideon v. Wainwright, 372 U.S. 335 (1963).