Gideon Incarcerated: Access to Counsel in Pre-Trial Detention

41 Pages Posted: 19 Jun 2018 Last revised: 11 Dec 2018

See all articles by Johanna Kalb

Johanna Kalb

University of Idaho - College of Law; New York University (NYU) - Brennan Center for Justice

Date Written: June 11, 2018


As the population of incarcerated persons has swelled in local, state, and federal facilities around the country, the infrastructure supporting the attorney-client relationship is under increasing stress. The result is an array of new cases about the difficulties of lawyering in jails and prisons. These cases challenge the lack of private space for legal visits, reductions in visiting hours, remote carceral placements, interference with legal mail, and monitoring of legal phone calls and legal email. Despite (or perhaps because of) these mounting challenges, many courts have become less receptive to Sixth Amendment claims from people behind bars, putting the right to counsel at risk. This Article traces the hidden ways in which mass incarceration has worked to degrade the right to counsel, both in fact and in law, for incarcerated criminal defendants. It then proposes possibilities for reinvigorating the Sixth Amendment’s protections for incarcerated defendants, through intersecting strategies for regulation and structural litigation, with the ultimate goal of breaking our national reliance on pretrial detention. Building on a 50-state survey of the jail standards governing the attorney-client relationship, the Article illustrates how the Sixth Amendment’s protections are currently understood by those who must facilitate them, and then proposes a new litigation strategy to catalyze reform.

Keywords: Mass Incarceration, Sixth Amendment, Bail, Pretrial Detention, Jail Standards

Suggested Citation

Kalb, Johanna, Gideon Incarcerated: Access to Counsel in Pre-Trial Detention (June 11, 2018). 9 U.C. Irvine Law Review 101 (2018), Loyola University New Orleans College of Law Research Paper No. 2018-014, Available at SSRN:

Johanna Kalb (Contact Author)

University of Idaho - College of Law

P.O. Box 442321
Moscow, ID 83844-2321
United States

New York University (NYU) - Brennan Center for Justice ( email )

161 Avenue of the Americas
12th Floor
New York, NY 10013
United States

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