Free Counsel: A Right, Not a Charity


“In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.”

The proposal of this paper is quite simple: all those charged with a crime, regardless of economic status, should be entitled to free counsel. The presence of counsel is fundamental to the operation of our courts and to the assertion of the defendants’ rights. However, current eligibility criteria are so arbitrary and unworkable that determination of the availability of free counsel is either pro forma or, when meaningfully pursued, too costly. Further, the availability of this most important of rights is decided without a skilled advocate arguing for that right. For these and other reasons, eligibility determinations are not worth the time, the cost, and the threat to constitutional rights they pose.

Universal eligibility for free counsel would not only solve the problems of definition, delay, the constitutional questions raised by determination procedures, the lack of participation by counsel in the determination procedure, and perhaps most importantly, cost. It also would simplify court procedures assure counsel’s availability far earlier in the process, and, if the defendants are convicted, allow whatever funds they may have to be applied to restitution, fines, or other public purposes.

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