The Welfarist Right to Counsel

Abstract

The Sixth Amendment right to counsel is typically and often exclusively understood as a criminal procedure protection. From the law school training of attorneys to the legal knowledge imparted to lay people by popular culture, this right is seen as solely within the province of the criminal justice system. This widely held belief is fragmentary and incomplete. Despite its reasonableness, this penal primacy has marred our ability to understand the contours and limitations of indigent defense.

Accordingly, this Article utilizes the gifts of legal history to make two novel interventions. First, I put forth an argument that has been gestured to by judges and legal scholars across the ideological spectrum but goes shockingly unstated: the right to counsel as currently practiced is a judicially-created welfare benefit. The second intervention concerns how this argument is actualized. The colonial right to counsel, as well as the right enshrined in the Sixth Amendment, were understood as negative liberties; the government could not prevent defendants from retaining counsel, but it was not required to appoint attorneys for the indigent. This negative liberty transformed into an affirmative obligation during the New Deal and Great Society eras in ways that I argue strikingly accord with the development of American cash assistance programs to the poor (i.e., welfare). Understanding the right to counsel in these ways has substantive implications for current legal, political, and popular discourse on criminal justice reform and economic inequality.