Abstract

http://ssrn.com/abstract=1824630
 


 



The Community Right to Counsel


Laura I. Appleman


Willamette University College of Law

April 27, 2011

Berkeley Journal of Criminal Law, Vol. 17, p. 1, 2012

Abstract:     
Contrary to popular understanding, the Sixth Amendment right to counsel was originally a community right. The existing historical evidence reveals that what we now interpret as an individual right to counsel was, in the colonial era, commonly understood as a right that belonged to the general community. As a result, the conventional history is both incorrect and incomplete, misinforming our current jurisprudential and social understanding of the right to counsel. In response, this Article provides the missing historical and constitutional reasoning for the creation of the Sixth Amendment right to counsel.

Critically, this collective right to counsel has import for our current regime of criminal punishment and sentencing. Since the Court has consistently relied on the colonial and Founding-era history to chart the boundaries of the modern right to counsel, we must fully understand the contours and ramifications of the historical right to counsel to plot our future path.

Moreover, there are some important implications of my historical findings on the future of the right to counsel. I contend that when applied, the collective right to counsel has important implications for three aspects of the right to counsel: 1) self-representation; 2) appointed counsel; and 3) ineffective assistance of counsel, particularly in light of Padilla v. Kentucky. I conclude that invoking a collective right to counsel alongside an individual right to counsel would help ensure better outcomes for both criminal defendants and their communities.

Number of Pages in PDF File: 61

Keywords: right to counsel, sixth amendment, community right, colonial history, constitutional law, criminal procedure

JEL Classification: K14

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Date posted: May 1, 2011 ; Last revised: July 10, 2012

Suggested Citation

Appleman, Laura I., The Community Right to Counsel (April 27, 2011). Berkeley Journal of Criminal Law, Vol. 17, p. 1, 2012. Available at SSRN: http://ssrn.com/abstract=1824630 or http://dx.doi.org/10.2139/ssrn.1824630

Contact Information

Laura I. Appleman (Contact Author)
Willamette University College of Law ( email )
245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6651 (Phone)
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