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Excerpted from: Shaun Ossei-Owusu, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 University of Pennsylvania Law Review 1161 (April 2019) (396 Footnotes) (Full Document Not Available)


ShaunOssei OwusuThe Sixth Amendment right to counsel that is taught in law schools and mechanized in legal practice is unmoored from the racial politics that gave birth to its modern form. Rich treatments of race and the criminal justice system exist, but current scholarship overlooks the instrumental role race played in the development of right to counsel jurisprudence. The right to counsel's relationship to race is typically understood in one of two ways. First, the right to counsel is often bundled with other criminal procedure provisions and considered in the context of larger judicial attempts to address racial inequality in the early and mid-twentieth century. This approach is informative but does not fully explain a constitutional provision that helped erect bureaucratic systems that many claim fail criminal defendants, and minorities in particular. A second line of interrogation uses the flaws and failures of indigent defense as one explanation for racialized mass incarceration. The idea here is that minority defendants are disproportionately impacted by under resourced indigent defense providers. This rendering has merit but is susceptible to a response of indistinctiveness (i.e., many aspects of the criminal justice system have racially disproportionate effects); it can also be ungenerously dismissed as another racial complaint. History demonstrates that indigent defense is not a part of the criminal justice system that simply produces racially disparate outcomes. Instead, the politics of race fundamentally shaped indigent defense jurisprudence and policy. Inattention to this fact limits understandings of the right to counsel and ultimately of the criminal justice system itself. Indigent defense providers are tasked with protecting the rights of poor defendants in a criminal justice system that is widely understood as being infected by racial discrimination. They are uniquely situated to challenge such bias in specific proceedings or in the context of larger criminal justice reform. But race-oblivious understandings of indigent defense--in the practitioner and scholarly contexts--limits these communities' ability to combat racial bias in the criminal justice system. Sensitivity to the racial character and history of indigent defense invites distinct ways of thinking about how legal services might shape criminal justice reform efforts.

This Article unearths a lost history of race and indigent defense. It argues that race played a significant role in the creation, maturation, and curtailment of the modern right to counsel. Before the Court recognized the right to counsel as an affirmative right, Progressive Era elites developed legal aid organizations. These reformers developed a racial framework that emphasized the race, poverty, and incompetence of southern and eastern Europeans in their institutionalization of legal aid. Once the Court recognized the right to counsel as an affirmative obligation in Powell v. Alabama, it would deploy this same framework for decades, but in service of black defendants. The Warren Court would eventually reject this framework in Gideon v. Wainwright and develop a more expansive right to counsel doctrine that was not as express but conscious about the ways indigent defense could curb racial discrimination in the criminal justice system. The advent of racialized law and order politics in the late 1960s led the Court to slowly abandon race-sensitive approaches to the right to counsel and curtail that right in ways that would shape the current indigent defense landscape. The Article draws on a range of historical sources to make this argument. These materials include archival documents, primary sources, oral histories, case law, and secondary literature.

The Article focuses on four different points in twentieth-century American indigent defense history.

The first two--the pre--Powell v. Alabama era (1890-1931) and the period between Powell and Gideon v. Wainwright (1931-1963)--are often given short shrift in scholarly renderings of the right to counsel's development. The first period is sometimes neglected because the Court had no substantive jurisprudence on the right to counsel before Powell. The second period, that between Powell and Gideon, is also given scant attention because of the Court's erratic and noncommittal indigent defense holdings. Notwithstanding the brief treatment these moments receive in indigent defense literature, this Article contends that these periods were rife with bureaucratic and jurisprudential happenings that hinged in part on race and would lay the foundation for the right to counsel's development during the Warren Court era.

The remaining Parts of the Article travel down the supposedly well-trodden territory of post-Gideon developments.

Part IV focuses primarily on the period between Gideon and Argersinger v. Hamlin (1963-1972). During this decade, which saw larger criminal procedure reforms, the Court had the most generous approach toward indigent defense.

Part V discusses the period after Argersinger and the lead up to Strickland v. Washington (1972-1984). There is no shortage of scholarship on the cases described in Parts IV and V. Yet these Parts of the Article deploy historical sources to make sense of and outstrip the common narratives of indigent defense failure as byproducts of judicial abandonment of Warren Court principles, legislative stinginess, and/or the punitive turn. No doubt, these factors are in play, but they tell an incomplete story. Race figured meaningfully into indigent defense policy in the 1960s.

During that period, which Part IV details, the Warren Court moved beyond the racial framework legal aid reformers developed before Powell and used by Courts afterward. Instead, it developed an ostensibly race-neutral prophylactic right to counsel rule in Gideon that coincided with the larger trend of using criminal procedure to address social inequality. Thereafter, a racially clever law and order campaign, propagated by a president who nominated four Supreme Court Justices in part on that crusade, played a role in the clarification and curtailment of Gideon and its progeny.

Accordingly, the paper's normative contentions comprise the substance of Part VI. I argue that this underexplored history of the right to counsel can inform our legal present. I suggest that this traversal into history can offer insight into the racial politics of indigent defense, which are often effaced from indigent defense discourse or subsumed within the proxy category of class. I contend that, in the absence of this history, scholars miss an important element of indigent defense. There is a methodologically diverse and voluminous body of scholarship that explores how race has influenced and continues to shape policing, prosecutorial decisionmaking, jury composition and deliberation, and judging. Yet indigent defense and its relationship to race have received less sustained analysis. This scholarly gap exists despite the reality that the Sixth Amendment's right to counsel is, in the words of Chief Justice Roberts, "the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys." The takeaway from this part of the argument is that indigent defense scholars and practitioners will be hampered if they fail to seriously engage the role of race independent of indigence.

Individuals with different beliefs about race's salience in society may need different kinds of convincing. Race skeptics may be unpersuaded by statistics that demonstrate racial motivations and disparities in the criminal justice system and therefore may not accept the specific claim that race has shaped the development of indigent defense. On the other hand, people who believe that race affects criminal justice administration may find my claim about race's influence on indigent defense to be unsurprising. This Article addresses both audiences. It attends to race skeptics by providing the unfiltered racial language of legal reformers who created indigent defense organizations and the courts that formulated the early right to counsel jurisprudence. In many places the evidence is unambiguous. For race-conscious individuals, this Article demonstrates how race has influenced indigent defense. It may be unsurprising to these people that race operates in a wing of the criminal justice system. But the unavailability of rigorous analytical or historical accounts of the race--indigent defense interface belies such predictability. Besides the historical reveal, the Article takes a further step by demonstrating the sophisticated ways that race has operated in indigent defense. Outright racial discrimination looms large in the story, but so do other dynamics, which include, but are not limited to, forms of racial neglect that do not hinge on animus, strategic deployments of race across racial groups, racial egalitarianism, racial fear, and imprecise understandings of race through the lens of poverty. Overall, the Article provides a dynamic description of how race shaped an important aspect of our legal system.

A few clarifications are necessary. First, it is important to note that race is not a static concept. As scholars across different disciplinary and topical fields have shown and as the Court has noted, race is a category of social division that morphs over time, which makes it difficult to tell a tidy, linear story where race operates similarly. Still, this Article focuses on how different concerns about race surfaced for the key protagonists in indigent defense history. Additionally, scholars are increasingly and helpfully historicizing legal aid. This Article is in conversation with, but distinct from, these contributions because it focuses on the role of race, which is a social category that has eluded thorough longitudinal analysis in regard to legal aid. Nevertheless, this Article is not a comprehensive history. It focuses on specific moments in time. Although some parts of the paper make causal arguments, this Article highlights recurrent but undertheorized themes in the development of indigent defense. My goal is to excavate the above-mentioned conflicts with a focus on criminal legal aid, but I inevitably touch on civil legal aid because, as a historical matter, some organizations did not make distinctions. Relatedly, I use legal aid and indigent defense interchangeably. To the extent that I focus specifically on civil legal aid, I use that term. Finally, by "legal aid" I am referring to the institutional provision of representation, advice, education, and/or counseling on a legal matter.

[. . .]

Finally, and relatedly, the history offered here demonstrates that it is important for indigent defense attorneys to recognize how race operates in inconspicuous ways. The post-1970s curtailment of Gideon was achieved by law and order campaigns that referenced race without explicitly announcing it. This period is instructive. It shows how racial concerns and motivations can go unstated but still have appreciable effects on indigent defense. Police officers and prosecutors--the understood antagonists of criminal defendants-- are typically described as the bearers of implicit bias. But indigent defense attorneys have their own prejudices that are slowly being unearthed. Jeff Adachi, who headed the public defender's office in San Francisco--considered to be one of the most effective and most race-conscious public defender's offices--has highlighted the unconscious biases present in his own organization. The office had partnered with social science researchers to measure racial disparities in plea bargaining and implemented biannual bias training sessions. Adachi had also encouraged attorneys to use checklist tools that ask questions such as "how would I handle this case different if my client was another race or had a different social background?" The historical precedent of subtle, race-based subjugation, along with experiential and empirically informed observations, has the potential to transform how indigent defense attorneys think about racial inequality.

To be sure, as Gabriel Chin contends, the ideal remedies for criminal justice inequality lie not in indigent defense, but in reduced arrests and prosecution. But, in the absence of such changes--or in conjunction with them--the history offered in this Article encourages reformers to consider indigent defense shortcomings as an issue with racial ramifications while also pushing racial justice advocates to figure indigent defense more prominently in their reform efforts. With the revelations offered in this Article, reformers, along with scholars and indigent defense providers, can reexamine how the right to counsel came to be as well as the limits and possibilities for administrative change.

Kellis E. Parker Teaching Fellow; Academic Fellow, Columbia Law School. J.D., University of California, Berkeley, School of Law; Ph.D., University of California, Berkeley; M.L.A., University of Pennsylvania; B.S. Northwestern University.

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