Martin Guggenheim
Abstract
This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. It argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Constitution was designed to ensure a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. At one time, the primary means for overseeing prosecutors was through the jury system. In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. This is the first Article to suggest that the Sixth Amendment right to counsel, universally regarded as an individual right, simultaneously serves as an essential structural protection for all of society by ensuring that courts are able to perform their independent role of checking executive power. In our adversarial justice system, judges are constrained from performing more than a very modest investigation into cases. Instead, if investigations conducted outside of the executive branch are to take place, they will be done by defense counsel.
An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general, enforcing the rights of her client, the collective defense system should be seen as the investigative arm of the judiciary, providing meaningful oversight on executive power. Without a robust indigent defender system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis. The current system, which allocates inadequate funds for indigent defense, raises a substantial separation of powers question because, in practice, the executive branch has too much accumulated power (to prosecute and to influence the outcome of a filed case on grounds other than the merits) and, relatedly, the judicial branch is denied the ability to carry out its duty to decide cases independently. The implications for this new understanding of the right to counsel are immense, not only allowing affirmative class-action challenges to under-funded indigent defender systems, but also requiring counsel for civil litigants whenever the government is the petitioner.
N.Y.U. Review of Law and Social Change 