Article   |   Volume 167, Issue 5

The Sixth Amendment Facade: The Racial Evolution of the Right To Counsel

By
167 U. Pa. L. Rev. 1161 (2019)

April 2019












One of the most perilous pitfalls of constitutional criminal procedure scholarship is the inexact treatment of race vis‐a‐vis the Sixth Amendment right to counsel. This imprecision exists because of historical and theoretical blind spots. In right to counsel literature, race is either neglected, subsumed under poverty, or understood in the simple terms of disproportionality (e.g., how indigent defense’s failures acutely impact racial minorities). A historical examination of early legal aid institutions and jurisprudence reveals the centrality of race in modern indigent defense schemes. Throughout the twentieth century, the politics of race informed right to counsel decisions and policies in ways that shape the current landscape but have been unrealized by scholars. Inattention to the role of race ultimately limits intellectual discussions on the right to counsel as well as indigent defense reform efforts.

This Article supplies a distinct way of thinking about the right to counsel and, in doing so, extends a different set of analytical possibilities. It argues that race has shaped the scope and trajectory of indigent defense. The Article uses a diverse array of untapped historical sources to radically reinterpret the legal landscape before Gideon v. Wainwright—a period that is often insufficiently attended to—and shows how race operated in the background of constitutional interpretations of the right to counsel and governmental commitment to this provision. The Article then revisits the post‐Gideon world. It demonstrates how unacknowledged anxieties about race, along with recoded ideas about indigent defense as a social welfare policy, influenced the Court’s clarification of Gideon. The Article concludes with a discussion on how this history can inform contemporary criminal justice reform.

The Sixth Amendment Facade: The Racial Evolution of the Right To Counsel - PennLawReview.com


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