THE FORGOTTEN SIXTH AMENDMENT: THE FEDERAL JUDICIARY’S RIGHT TO COUNSEL

Introduction

One of the prevailing accounts of the federal judiciary’s efforts to achieve change through rights enforcement might be summed up in a word: dependence. 1 1 For a classic account of how existing constraints on the courts hinder their ability to independently effectuate significant social reforms, see generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1st ed. 1991). ... Close When it comes to judicial efforts across the twentieth century to expand Equal Protection Clause protections to eradicate segregation and race-based discrimination, extend the Eighth Amendment to improve prison conditions, or introduce new criminal procedural rights to make the criminal legal system fairer, the judiciary is reliant on the political branches of government. Absent circumstances beyond the judiciary’s control, it cannot order its way to its desired ends. Because political actors rarely voluntarily comply, schools remain segregated in practice, prison conditions improve only marginally, and our criminal legal system stays unfair—or worse.

This Essay complicates aspects of that account by focusing on one of the judiciary’s earliest sustained attempts at rights enforcement—the Sixth Amendment right to counsel. The right to counsel is the centerpiece of many of the most compelling critiques of judicial rights enforcement, because of the stark gap between right and reality. 2 2 See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 5 (1997) [hereinafter Stuntz, Uneasy Relationship] (“[J]udge-made procedural rights are bound to have some perverse effects . . . [that] are impossible to measure . . . .”). ... Close It is a paradigmatic positive right. 3 3 See David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 873–74 (1986) (“The due process clauses explicitly require government deprivation, the first amendment requires government abridgement; the ‘right’ to assistance of counsel is not so negatively phrased.”). ... Close In criminal cases, the Supreme Court explained in Gideon v. Wainwright,“lawyers . . . are necessities, not luxuries.” 4 4 372 U.S. 335, 344 (1963). ... Close As the Indiana Supreme Court asked, however, in one of the first decisions to consider the “defense of the poor”: “[W]ho shall pay?” 5 5 Webb v. Baird, 6 Ind. 13, 18 (1854). ... Close The conventional view is that the obligation is the state’s, typically in the form of legislative appropriations. But the state inevitably falls short; legislatures almost universally do not fund indigent defense at anywhere near the levels necessary to secure adequate representation for indigent defendants. 6 6 See Sara Mayeux, What Gideon Did, 116 Colum. L. Rev. 15, 70 (2016) [hereinafter Mayeux, What Gideon Did] (listing “funding at the mercy of the state legislature” as a symptom of Gideon’s neglect); Marc L. Miller, Wise Masters, 51 Stan. L. Rev. 1751, 1788 (1999) (“One of the central claims in the literature is that . . . the other branches of government have failed to address the problem [of defense services for poor defendants] and, given the nature of the problem, may be unable to do so.”). ... Close The result, as Professor William Stuntz famously put it, is that “the broad structure of constitutional regulation of criminal justice has it backward, that courts have been not too activist, but activist in the wrong places.” 7 7 Stuntz, Uneasy Relationship, supra note 2, at 6. That failure leads to another—criminal procedural rights’ inability to achieve anything resembling substantive justice. As Professor Paul Butler titled his compelling critique of Gideon, Poor People Lose. Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013). Butler’s point is that Gideon’s failure reflects a deeper problem with rights than courts’ inability to effect social change. See id. at 2202–03 (“Gideon has not, and will not, change the fact that in American criminal justice, poor people are losers.”). ... Close

That’s not how enforcement of the right to counsel began. The Sixth Amendment’s version of the right to counsel as we currently understand it did not exist at the Founding; 8 8 See Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L. Rev. 1635, 1637–57 (2003) (tracing the doctrinal evolution of the right to counsel). ... Close nor, for that matter, did it come to life with Gideon’s lofty language in 1963. 9 9 See Gideon, 372 U.S. at 344 (“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”). ... Close The modern instantiation of the right dates to 1938, with Justice Hugo Black’s majority opinion in Johnson v. Zerbst. 10 10 304 U.S. 458 (1938). ... Close Johnson, which read the Sixth Amendment as providing a right to counsel for all defendants in federal court, required nothing of either political branch of the federal government. 11 11 See id. at 467. ... Close Its directives were instead to the federal district courts to use their longstanding inherent powers 12 12 See infra notes 89–93 and accompanying text (discussing the historical development of judicial power to appoint attorneys for indigent defendants). ... Close to guarantee that otherwise unrepresented defendants under “the protection of a trial court” knew they had the right to a lawyer and to appoint lawyers for those who wanted representation. 13 13 See Johnson, 304 U.S. at 465. ... Close The failure to do so, Johnson concluded, represented the “failure to complete the court—as the Sixth Amendment requires—by providing counsel,” such that the district court would lack jurisdiction over the proceedings and be subject to subsequent habeas review. 14 14 Id. at 468. ... Close

Johnson’s unfunded counsel mandate lasted for more than two and a half decades, until Congress passed the Criminal Justice Act of 1964 (CJA), which began to provide the structure and funding necessary to compensate lawyers appointed to represent federal criminal defendants. 15 15 See infra section III.B (discussing the enactment of the District of Columbia Legal Aid Act of 1960 and the CJA). ... Close Until then, the judiciary enforced and implemented the right by itself.

This Essay recovers how the judiciary fared based on original archival sources 16 16 This Essay draws on a variety of original archival sources from judicial administrative agencies, administrators, and individual judges. Two sets of archival sources offered particularly rich seams of information. The first is the National Archive’s Record Group 116, which holds the records of the Administrative Office of the United States Courts. These records include reports and memoranda prepared by Judicial Conference committees as well as materials from the Administrative Office and its first director, Henry Chandler. The second is the John F. Kennedy Library’s James V. Bennett Personal Papers, which holds many letters exchanged between Representative Emanuel Celler and federal judges across the country discussing how the courts were approaching indigent defense in the years leading up to the passage of the Criminal Justice Act.
Throughout the Essay, these sources are cited directly, followed by a parenthetical noting that scans of the sources are on file with the Columbia Law Review. Because these letters and reports sometimes had important information—such as the date or the author name—omitted on the individual source, this Essay has at times used contextual information from other sources and the archives to complete citations. Scans for all archival sources will remain on file with the Columbia Law Review. ... Close from judges and judicial actors, like the Administrative Office and the Judicial Conference. 17 17 From its creation in 1922 until 1948, today’s Judicial Conference was known as the Conference of Senior Circuit Judges. See Act of Sep. 14, 1922, ch. 306, § 2, 42 Stat. 837, 838. For simplicity, this Essay refers to the Conference as “the Judicial Conference” throughout. ... Close During what this Essay labels the inter-right period, the time between Johnson’s establishment of a formal version of a right to counsel and funding for that right, the federal judiciary engaged in a judiciary-wide project to secure a version of the right to counsel in courtrooms across the country. Supreme Court and lower court decisions affixed some meaning to the right to counsel. 18 18 See infra section II.A. ... Close The judiciary exercised new administrative powers to promulgate rules governing the treatment of poor defendants, 19 19 See infra section II.B. ... Close to study the issue, and, ultimately, to lobby Congress to appropriate funds. 20 20 See infra section III.B. ... Close Most importantly, district court judges used their inherent authority to appoint thousands of lawyers to represent poor defendants across the country, usually without offering those lawyers either a choice or compensation. 21 21 See infra section III.A. ... Close Supplying these lawyers forced federal judges to innovate with new appointment systems—from simple lists or panels of available attorneys to more formalized programs—and to require the participation of a wide cross section of the bar. 22 22 See infra sections III.A–.B. ... Close

There is extensive literature on the doctrinal origins and evolution of the right to counsel, 23 23 See, e.g., Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48, 52–65 (2000); Shaun Ossei-Owusu, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 U. Pa. L. Rev. 1161, 1168–211 (2019) [hereinafter Ossei-Owusu, The Sixth Amendment Façade]. ... Close the design of indigent defense services, 24 24 See, e.g., Sara Mayeux, Free Justice: A History of the Public Defender in Twentieth-Century America 22–23 (2020) [hereinafter Mayeux, Free Justice]; Chester L. Mirsky, The Political Economy and Indigent Defense: New York City, 1917–1998, 1997 N.Y.U. Ann. Surv. Am. L. 891, 902–08 (1997); Eve Brensike Primus, The Problematic Structure of Indigent Defense Delivery, 122 Mich. L. Rev. 205, 207 (2023) [hereinafter Primus, Problematic Structure]. For an example of the robust empirical literature on different models of defense services, see Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel 4–5 (Nat’l Bureau of Econ. Rsch., Working Paper No. 13187, 2007). ... Close and the endemic state failure adequately to fund those services. 25 25 See infra notes 50–73 and accompanying text. ... Close And yet, likely because federal criminal cases today make up only a fraction of overall criminal cases, 26 26 Mayeux, Free Justice, supra note 24, at 153. For the entirety of the inter-right period, however, federal criminal adjudication contributed to a higher proportion of the overall share of the prison population than it does today. Compare Patrick A. Langan, U.S. Dep’t of Just., Race of Prisoners Admitted to State and Federal Institutions, 1926–86, at 5 (1991), https://bjs.ojp.gov/content/pub/ pdf/rpasfi2686.pdf [https://perma.cc/H22M-9ZB4] (showing that in each year during the inter-right period, individuals admitted to federal incarceration never made up less than 16% of all individuals admitted to incarceration), with E. Ann Carson & Rich Kluckow, U.S. Dep’t of Just., Prisoners in 2022—Statistical Tables 17 (2025), https://bjs.ojp.gov/document/ p22st.pdf [https://perma.cc/V5AC-KPS6] (showing that in 2021 and 2022, individuals admitted to federal incarceration made up approximately 10.0% and 9.5%, respectively, of all individuals admitted to incarceration). ... Close and perhaps because federal defense services are relatively well funded, 27 27 See infra notes 75–77 and accompanying text. ... Close there is no account of the role federal judges played in enforcing the unfunded right to counsel in their own courtrooms. 28 28 Contemporaneous work and two survey-based studies from the end of the inter-right period provide useful reviews of some aspects of the right to counsel in federal court. See William M. Beaney, The Right to Counsel in American Courts 44–79 (1955) (discussing the development of the right to counsel in federal courts from 1938 to 1955 post-Johnson v. Zerbst); John Bodner, Jr., Joseph Goldstein, John F. Grady, Walter E. Hoffman, James M. Marsh, George Nye, Herbert L. Packer, Walter V. Schaefer & Francis A. Allen, Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice 12–57 (1963) [hereinafter Allen Report] (explaining that “the present practices in the federal courts significantly fail to achieve a system of adequate representation”); Bruce J. Havighurst & Peter MacDougall, Note, The Representation of Indigent Criminal Defendants in the Federal District Courts, 76 Harv. L. Rev. 579, 579–80 (1963) (“The federal government, in the absence of a waiver of the right to counsel, must thus furnish counsel for the indigent or forgo prosecuting [them]. As of today, however, the Government has no attorneys in its employ who provide this service . . . .”). More recently, Professor Shaun Ossei-Owusu argues that the “differential use of [courts’] inherent authority” to appoint counsel in criminal but not civil cases from the end of the nineteenth through the middle of the twentieth century contributed to the gap between the representation available to indigent criminal defendants and that available to indigent civil litigants. Shaun Ossei-Owusu, Civil vs. Criminal Legal Aid, 94 S. Cal. L. Rev. 1561, 1593 (2020) [hereinafter Ossei-Owusu, Civil vs. Criminal Legal Aid]. Ossei-Owusu’s focus, however, is on the existence of these appointments during this time period in general, not the specific ways in which federal judges enforced the right to counsel in their courtrooms. ... Close

By supplying this account, this Essay yields three contributions related to the judiciary’s power and interest in enforcing the right to counsel. First, it clarifies the institutional components of the right to counsel. Supreme Court decisions like Powell v. Alabama, 29 29 287 U.S. 45 (1932). ... Close Johnson, and Gideon sound in the high ideals of individual rights leveling an adversarial process in which lay defendants are pitted against professional prosecutors. 30 30 See Miller, supra note 6, at 1788 (“[T]he passionate language of Gideon, and Powell well before, suggests a strong social morality among judges and lawyers supporting the provision of competent lawyers to criminal defendants.” (footnote omitted)). Critics, by contrast, have long argued that the right to counsel is simply a means to process indigent defendants more efficiently. See, e.g., Abraham S. Blumberg, Covert Contingencies in the Right to the Assistance of Counsel, 20 Vand. L. Rev. 581, 603–05 (1967) (arguing that because courts prioritize production and efficiency over the adversary ideal, adding counsel and other resources mainly increases system efficiency and guilty-plea output rather than meaningfully changing outcomes); Mike McConville & Chester Mirsky, The Rise of Guilty Pleas: New York, 1800–1865, 22 J.L. & Soc’y 443, 444–45 (1995) (explaining the traditional view that “jury trials . . . were unwitting and reflexive, generally wasteful of public resources and, because of the absence of trained professionals, little more than slow guilty pleas themselves”). ... Close But, from the outset, the right to counsel federal judges worked to secure was both a resource for the judiciary, in the form of a more lawyerly criminal process, and a costly service to supply, because judges themselves had to impose on the lawyers before them to provide representation. As much as right to counsel doctrine or judicial ideology, the costs and benefits to the judiciary of the new right limited the scope of its unfunded version.

Second, the judiciary’s actions during this period demonstrate how the judiciary created resources for the right to counsel. The judiciary received more than it paid for in the form of the free lawyers it conscripted 31 31 Cf. Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969, 1973–74 (1992) (“[T]he first step is ending the conscription of defense counsel . . . . You get what you pay for.”). ... Close : Judicial appointments of lawyers and efforts to develop new appointment systems raised the amount of defense litigation resources available to poor defendants, at least to an extent. 32 32 See infra section III.A. ... Close At the same time, the fragile equilibrium judges created to secure these elevated, but unpaid, services generated interest alignment between judges, lawyers, and poor defendants over indigent defense funding, helping to build the groundwork for the ultimate enactment of the CJA. 33 33 See infra section III.B. ... Close

Third, reconstructing the right across early judicial decisions, through the rules the judiciary created and into the nascent administrative efforts and appointment systems judges developed, captures an institutional dynamism not typically attributed to the federal judiciary. Before the civil rights injunction accustomed the judiciary to enforcing constitutional rights by ordering and, sometimes, restructuring other actors, 34 34 See Abraham Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976) (“[T]he trial judge has increasingly become the creator and manager of complex forms of ongoing relief . . . .”); Owen Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 2–3 (1978) (discussing large-scale restructuring efforts undertaken by courts to enforce civil rights and constitutional protections in the last half of the twentieth century). ... Close judges flexed and shifted their own institution to provide counsel. They did so not as “activists” 35 35 Perhaps fittingly, one of the earliest uses of the term “judicial activism”—in Arthur Schlesinger’s 1947 Fortune magazine article, The Supreme Court: 1947—identified Justice Black as a part of a new group of judicial activists on the Court. See Keenan D. Kmiec, Comment, The Origin and Current Meanings of “Judicial Activism”, 92 Calif. L. Rev. 1441, 1445–47 (2004) (discussing Schlesinger’s portrayal of Justices Hugo Black, William Douglas, Frank Murphy, and Wiley Rutledge as activists). ... Close but rather as administrators attempting to secure adequate hearings in their own courtrooms.

The right to counsel the judiciary enforced without funding was not a better version of the right than the one congressional funding affords today. Most defendants likely received very limited representation. 36 36 See infra section III.A. ... Close But the judiciary’s efforts to implement this version of the right deepen our analytic account of the judiciary’s power and position when it comes to certain instances of rights enforcement and, more broadly, to judicial efforts to effectuate change. To reframe Stuntz, the inter-right period shows how federal courts have been and can be active in some of the right places within the current structure of our system of criminal procedure. 37 37 See supra note 7 and accompanying text. ... Close

To be sure, establishing the right to counsel in federal courts involved a less “dramatic stand[]” than other instances of rights enforcement. 38 38 See Stuntz, Uneasy Relationship, supra note 2, at 76 (noting that defendants’ interests may be better protected by judicial efforts aimed at “funding, the definition of crime, and sentencing” rather than procedural rights). ... Close Rather than reforming institutions beyond the courthouse, like schools, prisons, or police stations, the judiciary’s efforts were trained inwards. 39 39 The qualified success of the inter-right period largely maps Rosenberg’s description of the constraints on judicially driven change and the conditions that can facilitate that change. Rosenberg, supra note 1, at 86 (describing “constraints built into the structure of the American judicial system . . . that made courts singularly ineffective institutions for successfully producing direct change in civil rights”). ... Close There were no federalism concerns, like those that trailed concurrent efforts to rein in state criminal adjudications by incorporating the Bill of Rights. 40 40 See, e.g., Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 954 (1965) (warning that applying the Bill of Rights to the states risks a federally imposed “uniform code” of criminal procedure with no room for reasonable state variation). ... Close The judicial goal was more modest: to put its own house in order.

Still, in enforcing and implementing the unfunded version of the right to counsel in its own courtrooms, and ultimately helping to secure the funded version, the judiciary engaged in a significant effort at judicial statecraft. 41 41 For a variety of different examples of forms of “judicial statecraft,” see, e.g., Farah Peterson, Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation, 77 Md. L. Rev. 712, 713–15 (2018) (recovering early nineteenth century “power sharing” efforts that centered judges’ “equitable interpretation” as “the jurisprudential response” to irresponsible legislation); Judith Resnik, Seeing “the Courts”: Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy From the 1980s to the 2020s, 43 Rev. Litig. 193, 199 (2024) [hereinafter Resnik, Seeing “the Courts”] (describing American adjudication as an “experiment in statecraft”); Karen M. Tani, Constitutionalization as Statecraft: Vagrant Nation and the Modern American State, 43 Law & Soc. Inquiry 1646, 1652 (2018) (describing “the possibility of constitutionalization as a powerful tool of the modern American state, even as it was also a strategy of savvy social movement activists and a product of sincere federal court judges”); see also James C. Scott, Seeing Like a State 1–11 (1998) (offering a classic, highly contested account of “tragic episodes of state-initiated social engineering”). ... Close The federal judiciary helped to transform the process of criminal adjudication in federal court by making criminal cases more legible to judges and to the federal courts more broadly. Versions of this form of court-building might today offer additional ways for the judiciary to strengthen indigent defense services, at a time when funding continues to be precarious, and the judiciary confronts a variety of institutional challenges.

The Essay proceeds as follows. Part I describes the account of the dependent judiciary. Parts II and III chart the inter-right rules and the systems of enforcement and assess their effects. Part IV situates the means and ends of the judiciary’s project within the broader landscape of judicial institution building and considers ways in which the judiciary might continue to work “to complete the court.” 42 42 See Johnson v. Zerbst, 304 U.S. 458, 468 (1938). ... Close

A note: An institutional account like this tends to exclude any sustained analysis of the stories of the people who came before the federal courts, the defendants and habeas petitioners who were new and tenuous rightsholders. It misses the “carton[s] of cigarettes” that, as Judge Rufus Foster of the Fifth Circuit complained at a meeting of the Judicial Conference in 1937, were the sole costs an incarcerated individual needed to pay for the legal advice from a fellow incarcerated individual to file a habeas petition that would yield “a day out of the walls.” 43 43 Minutes of the Judicial Conference of the United States 9–10 (Sep. 23, 1937) (on file with the Columbia Law Review) [hereinafter 1937 Judicial Conference Minutes]. ... Close Of course, in the hands of individuals who believed they’d been unfairly treated, those cartons of cigarettes also brought about the constitutional doctrine at issue during this period. That, in fact, seems to have been the genesis of a habeas petition that Foster himself wrote the Fifth Circuit panel opinion denying only a few months after the Judicial Conference meeting. The case was named Johnson v. Zerbst. 44 44 92 F.2d 748 (5th Cir. 1937). According to Elbert Tuttle, Johnson’s lawyer in his Fifth Circuit appeal and before the Supreme Court (and later a legendary federal appellate judge), Johnson’s habeas petition was the result of advice Johnson received from “fellow inmates”:
[A]t the Atlanta Penitentiary [Johnson] found all kinds of free legal advice from fellow inmates. Someone told him that he had been deprived of a constitutional right to counsel at his trial. He filed a petition for habeas corpus which [the district court judge] thought of sufficient gravity to appoint counsel to represent him.
Elbert P. Tuttle, Reflections on the Law of Habeas Corpus, 22 J. Pub. L. 325, 331 (1973). ... Close