Gideon Incarcerated: Access to Counsel in Pre-Trial Detention

Abstract

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