The Community Right to Counsel

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

61 Pages Posted: 1 May 2011 Last revised: 10 Jul 2012

See all articles by Laura I Appleman

Laura I Appleman

Willamette University College of Law

Date Written: April 27, 2011

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.

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

JEL Classification: K14

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: https://ssrn.com/abstract=1824630 or http://dx.doi.org/10.2139/ssrn.1824630

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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