50 years after Gideon: should the right to counsel be expanded?

Last month marked the 50-year anniversary of the seminal U.S. Supreme Court Case Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), where the Court held that the Sixth Amendment to the U.S. Constitution provided all defendants in criminal prosecutions the right to assistance of counsel and is obligatory on the states by the 14th Amendment. This decision was made about 170 years after the United States Bill of Rights was ratified. Although Gideon is a landmark decision with sweeping effects and is worth applauding, it still amazes me that it took about 170 years after the Bill of Rights for the U.S. Supreme Court to make such an important decision.

The Sixth Amendment right to counsel attaches when the government makes a formal charge, while the Fifth Amendment allows defendants to assert this right during custodial interrogation by the police, even when no formal charges have been brought. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877 (1972); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). But an important issue is still not resolved: what about the indigent accused at pre-trial proceedings, such as bail? There is currently no law that provides indigents with the right to counsel at bail proceedings — but this stage is perhaps one of the most important stages affecting their freedom.

Many accused cannot afford an attorney, nor can they afford bail. But this affects more than just the accused being locked up for two or three weeks or more, pending trial. This affects their jobs, their children, parents, dependents, spouses, etc. They are likely unable to effectively defend themselves or argue in front of judge for bail reduction. And many of them still have bail set at an amount they cannot pay, even after asking family and friends for help. Many do not understand they will get their money back if they properly appear. The average citizen may be able to find a few hundred dollars for bail, but for the indigent community who may already be struggling to put food on the table and keep their minimum-paying jobs, this is not an easy feat.

For there to be true justice and equality, now is the time for courts to issue a ruling that allows indigents in criminal prosecutions the right to counsel for bail hearings.