Whatever happened to the right to counsel?
This state of affairs has eroded our collective bedrock intuition that people are innocent until proven guilty. The New York Times tells us breathlessly that Judge Hunter actually released a person facing a serious charge and is even considering doing it again. As if it might be appropriate to keep people accused of "serious" crimes locked up without lawyers, just in case. But the right to decent counsel does not diminish when a person is accused of a really serious offense. If anything, the Constitution becomes more important the more serious the charge, and the more intrusive the government wants to be. After all, what were Hamdi and Padilla but cases in which the government alleged that the terrorism accusations were so "serious" that we should dispense with the usual constitutional protections? The Supreme Court, in its Hamdi opinion, rebuked the government for that stance, holding that even enemy combatants and terrorists cannot be detained indefinitely without due process and access to legal representation.
Ironically, poor U.S. citizens with no connections to al-Qaida have long languished in jails without counsel, or at least without counsel who can spend more than a few minutes showing them where to sign the guilty-plea papers.
So, back to Judge Hunter. Although he was galvanized by disaster, his response is actually quite modest: He is trying to enforce the Sixth Amendment of the U.S. Constitution, which reads: "In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." The U.S. Supreme Court has made it clear for decades that if the government wants to prosecute and incarcerate an individual, it can only do so if that person has a competent lawyer. In its landmark case Gideon v. Wainwright the court invalidated Clarence Gideon's conviction because he wasn't represented. Threw the conviction out. Overturned it. Told the government: "You can't do that. No lawyer, no prosecution." Today, Judge Hunter is saying no less.
This is yet another one of those "Katrina moments" in which we realize that post-Katrina New Orleans is a high-definition example of how this nation routinely treats the poor and people of color. Right after the hurricane, the Brookings Institution issued a report on national poverty saying that, "Hurricane Katrina's assault on New Orleans' most vulnerable residents and neighborhoods has reinvigorated the dialogue on race and class in America." Well, today, Judge Hunter re-reinvigorates that dialogue, this time over the right to counsel for those same poor, vulnerable individuals. Just as important, he reminds us all that it shouldn't take a hurricane to uphold the Constitution.
Alexandra Natapoff is professor of law at Loyola Law School, Los Angeles. She is the author of the law review article “Misdemeanors,” forthcoming in the Southern California Law Review.
Illustration by Mark Alan Stamaty