Beyond 'Life and Liberty': The Evolving Right to Counsel

51 Pages Posted: 9 Apr 2012 Last revised: 30 Mar 2017

See all articles by J.D. King

J.D. King

Washington and Lee University - School of Law

Date Written: April 9, 2012

Abstract

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.

This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment. Two years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel. Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases.

Keywords: Sixth Amendment Jurisprudence, Right to Counsel, Criminal Justice System

JEL Classification: K10, K14

Suggested Citation

King, John Derek, Beyond 'Life and Liberty': The Evolving Right to Counsel (April 9, 2012). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 48, 2013, Washington & Lee Legal Studies Paper No. 2012-18, Available at SSRN: https://ssrn.com/abstract=2037500

John Derek King (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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