The Sixth Amendment to the U.S. Constitution says that a criminal defendant has a right to an attorney. Not everyone who is charged with a crime can pay for a lawyer, though. The U.S. Supreme Court has interpreted the Sixth Amendment to mean that an indigent person has a right to a free lawyer. Recognizing the importance of this right, the Supreme Court included it in the Miranda warnings that police must give a suspect during an arrest.
The government foots the bill for these free lawyers, who are known as public defenders. States do not always provide enough funds and resources for the public defender system to work properly. Often, there are far too few public defenders to adequately represent the defendants who need them. This also can cause a constitutional problem because the right to counsel doesn’t just guarantee an attorney. It guarantees “effective assistance of counsel.” While this doesn’t require legal brilliance, an attorney must meet an objective standard of reasonableness.
What can a state do when its public defenders are so overburdened that they cannot provide effective assistance of counsel? In 2013, Missouri passed a law allowing judges to place cases on a waiting list for defender services upon finding that a public defender would be too overburdened by their caseload to provide effective assistance of counsel. Waiting lists started to form in 2017. By the end of 2019, several thousand defendants in nearly 30 counties languished on waiting lists. Hundreds had been waiting for an attorney for over a year.
A Cole County judge recently reviewed an argument that this situation violated constitutional principles. (The argument was based on the right to counsel under the Missouri Constitution, but this provision is so similar to the Sixth Amendment that it is interpreted similarly.) Judge William Hickle noted that the right to counsel does not just apply to trials. Instead, the right attaches at a defendant’s first appearance before a judicial officer, which is considered the start of adversary judicial proceedings.
After that point, a defendant has a right to have the assistance of their appointed lawyer at any critical stage of the proceedings, or whenever necessary to assure a meaningful defense. For example, this generally includes bond hearings, when a judge determines whether a defendant should be released from custody. Judge Hickle noted issues that defendants on the waiting list faced at bond hearings.
In addition, he pointed out that the state must provide an attorney to an indigent defendant within a reasonable amount of time. While courts have not defined a set time as “reasonable,” Judge Hickle felt that a delay should not last for months or years. Thus, he ruled that the state cannot use the waiting list law to justify withholding counsel from a defendant for more than two weeks after they are found indigent and entitled to appointed counsel. If a critical stage occurs sooner than two weeks, the state must appoint counsel in time to assist with it.
As a side note, Judge Hickle rejected the state’s argument that the case should be dismissed because the waiting list was not currently used. After the case was filed, Missouri allocated enough funding to the public defender system to clear the waiting list. However, Judge Hickle pointed out that it’s far from clear that the waiting list will not be used in the future. Funding can ebb and flow, and Missouri has a history of allocating inadequate resources to public defenders. Thus, he felt a need to impose constitutional limits on the use of the waiting list for when the state resorts to it again.
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