The right to an attorney is an assumed staple in American Criminal Procedure. Is it though?
dissent in a Supreme Court case allows justices to think aloud, to explore
issues not directly before the court, and to differentiate points of law. While not every dissent leads to fun quips
about the majority’s reasoning being “pure applesauce,” they do leave us
wanting to know more.
Justice Thomas’ dissents are intriguing because I really want to see what it would be like to live in his America. As I noted last week, his opinions have earned the support of Justice Gorsuch. We see, in real time, the preservation and continuation of a jurisprudence that would make Scalia proud.
we look at the foundational concerns regarding constitutional rights, we see
Thomas and Gorsuch willing to rethink accepted judicial policy. And I say “policy” on purpose.
time, it was a dissenting opinion on the topic of Incorporation and its
vehicle, the 14th Amendment’s Due Process Clause. Thomas and Gorsuch preferred the Privileges
and Immunities route.
time, it’s a case dealing with the right to an attorney.
give you some background.
- Garza did some crime, didn’t want to do all the time, so he accepted a plea agreement, which included a waiver of his right to appeal certain aspects of his case, namely his sentence length.
- Dude tells his attorney he wants to appeal his sentence length, something he isn’t permitted to do. So the attorney says “nah,” and chooses to go against his client’s wishes and NOT file an appeal in order to keep the plea bargain intact.
- The guy sues everybody and claims that his counsel was ineffective and that the attorney should have filed the appeal.
Surprisingly, during oral arguments, Justice Ginsburg remarked that it appeared that the defendant was trying to “have his cake and eat it too.” He was facing life in prison and had it reduced to 10 years. Then after accepting that arrangement, he wanted to appeal to have it reduced even further, which of course was proscribed by the agreement.
The opinion was released today. The 6-3 decision held that some made up standards regarding attorneys and clients apply even in cases where the defendant has waived certain rights.
Sotomayor wrote the majority opinion and was joined by Ginsburg, Breyer, Kagan,
Roberts, and Kavanaugh. Justice Thomas
dissented and was joined by Gorsuch and Alito.
can read the opinion here and listen to oral arguments here.
will skip any discussion of the standards used to determine this case because they
don’t add anything of value to the overall goal of Thomas’ dissent. Thomas, Gorsuch, and Alito all agreed that,
if we accept this standard, the majority is still wrong, but Alito would not
join the last part of the dissent, which is what I would like to focus on.
The majority opinion and oodles of precedent are predicated on Gideon v. Wainwright.
Gideon recognized the right of individuals to have an attorney provided to them in all criminal cases in state court. This of course created the public defender system that we know of today.
relevant portion of the 6th Amendment reads, “the accused shall enjoy the right…to have the assistance of counsel
for his defense.”
the 1960’s the Supreme Court read that to mean that the accused must be
provided an attorney.
III of Justice Thomas’ dissent reminds us, as Scalia had pointed out in various
opinions and interviews, that this is a fundamental misunderstanding of what
rights are in our system.
can be understood as positive or negative.
This formulation posits that certain rights reflect an innate unmovable
standard that cannot be violated and other rights reflect an inherent
entitlement to something.
rights include the proposed right to free college, to healthcare, to government
benefits in general. While negative
rights include the free exercise of religion, the right to avoid testifying against
oneself, and the right to bear arms. Negative rights restrain government and
protect citizens. The government cannot make you do something. Positive rights compel the government to do
something for you or provide you with some service.
we look at the right to an attorney, we see two options:
- A positive right – the right to be provided an attorney.
- A negative right – the right to be free from the government telling you that you CANNOT have an attorney.
The Bill of Rights guarantees negative rights. If it doesn’t, then the Second Amendment includes the right of the indigent to be provided firearms if they cannot afford them.
No, it’s the right of the people to not be told what to do. The government cannot prevent you from owning firearms and the government cannot prevent you from having an attorney. That’s it.
Thomas explains why this is in his dissent.
“In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That provision “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Padilla v. Kentucky, 559 U. S. 356, 389 (2010) (Scalia, J., dissenting). Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims.
Our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney. The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.
History proves that the States and the Federal Government are capable of making the policy determinations necessary to assign public resources for appointed counsel. The Court has acknowledged as much. Betts, 316 U. S., at 471 (declining to extend the right to counsel to the States because “the matter has generally been deemed one of legislative policy”). Before the Court decided Gideon, the Court noted that “most of the States have by legislation authorized or even required the courts to assign counsel for the defense of indigent and unrepresented prisoners. As to capital cases, all the States so provide. Thirty-four States so provide for felonies and 28for misdemeanors.” Bute, 333 U. S., at 663 (internal quotation marks omitted). It is beyond our constitutionally prescribed role to make these policy choices ourselves. Even if we adhere to this line of precedents, our dubious authority in this area should give us pause before we extend these precedents further.”
I would urge you all to read the majority opinion and the whole dissent as I can’t possibly copy and paste all of it here.
This dissent reflects a deep respect for what our nation was supposed to be like. It abides by the simple fact that the Court is not suited to and cannot make policy judgments. If a change is needed, legislation or a constitutional amendment is the only sufficient means of effecting that change. It is not up to the Court to implement changes no matter how well-intentioned they are.
it a good idea for defendants to be provided counsel if they cannot afford it?
Sure. Has that been enshrined in our
Justice Thomas and Justice Gorsuch are not willing to go beyond the text. Scalia would be proud.
the summer, a conservative commentator on Twitter, Paula Bolyard, shared a
lyric parody of what we should expect of a Supreme Court Justice.
“I see a little silhouette of a judge
Scare the libs, scare the libs
Will you do the Constitution?
Thunder bolt and lightning
Very very frightening me
Like Scalia, Like Scalia
Like Scalia, Clarence T.”https://twitter.com/pbolyard/status/1012476386198552582
this regard, Gorsuch has not disappointed.