The conventional view of the Sixth Amendment right to counsel for indigent defendants is that its enforcement depends on the political branches to implement the right by appropriating the money to enforce it. But that’s not how enforcement of the modern version of the right started. For more than twenty-five years, between 1938, when Johnson v. Zerbst established a right to appointed counsel for federal defendants, and 1964, when Congress began...
Sixth Amendment
A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s...
Plea bargaining dominates the modern criminal justice system. Constitutional safeguards, however, have only slowly followed this fundamental shift in criminal adjudication. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court extended the Sixth Amendment’s right to counsel to situations in which deficient counsel leads a defendant to forgo a beneficial plea agreement. The Court’s test left state court...