The Right to Counsel in an Age of Case-Specific and Systemic Inadequacies

Many of us recall our law school days, when the case Gideon v. Wainwright was explored and celebrated. Some of us may have been curious enough to read the wonderful Gideon story as presented in Anthony Lewis’s book Gideon’s Trumpet. Lewis walks us through the tale, including a flawed trial in which Clarence Earl Gideon represents himself, resulting in his conviction. The story continues with the routine affirmance of his conviction on appeal, the filing of a typically prolix and confusing handwritten pro se petition for certiorari prepared by Gideon, and the extraordinary recognition by the U.S. Supreme Court of the fundamental issue of right to counsel buried in Gideon’s amateur petition, leading to the Court agreeing to hear the case. Lewis describes the appointment of Abe Fortas as counsel for Gideon and the amicus brief by more than 20 states supporting Gideon — spearheaded by a young Minnesota attorney general named Walter Mondale. The tale concludes with Justice Hugo Black’s wonderful opinion for a unanimous court declaring that the U.S. Constitution requires a state court to appoint counsel for any criminal defendant who could not otherwise afford to retain an attorney, and the rapid acquittal of Gideon on retrial when represented by a competent local criminal defense attorney.

Gideon, of course, was based upon the incorporation of 6th Amendment’s right to counsel against the states through the Due Process Clause of the 14th Amendment. But this proposition, unanimously accepted by all members of the Supreme Court in 1963, may now be threatened in the current Court. A majority of the Court’s current members seem dedicated to two propositions: the full-throated embrace of an originalist model of constitutional interpretation and the concomitant dramatic collapse of the doctrine of stare decisis. It is also clear that several members of the working majority question the Gideon framework. In other words, although Gideon is over 60 years old and has been cited a zillion times, I fear it may not be considered settled law because, in the view of the originalist majority, it was not settled right.

There is another challenge to ensuring a robust right to counsel throughout the country. While Gideon required states to honor the right to counsel in state criminal proceedings, it did not directly address the question of systemic inadequacies that arise, for example, when appointed counsel is so overwhelmed with cases that it is not humanly possible for defense counsel to do a thorough job in each representation. Courts must meet these realities by building and expanding upon Gideon’s principles to ensure that systemic barriers like inadequate staffing and funding of public defenders do not result in deprivation of effective assistance of counsel. 

Given the views of the current Supreme Court majority toward the right to counsel, originalism, and stare decisis, the federal courts may not be the best place to develop that law. That is why I decided to undertake a comparative study of state and federal law related to the right to counsel dealing with both case-specific and systemic inadequacies. My findings, which rely on and cite the works of many judges, scholars, and observers, were published in an article in the University of Missouri-Kansas Law Review. The overarching lesson is that, for myriad reasons, state law right-to-counsel claims deserve a close look.

First, many states developed the state constitutional right to counsel well before the U.S. Supreme Court issued Gideon. For instance, Powell v. Alabama held in 1932 that the 14th Amendment’s Due Process Clause required a criminal defendant be given reasonable time and opportunity to secure counsel. It relied extensively on the evolving right to counsel under state constitutions as applied by state courts. Historically, many state courts were more protective of the right to counsel earlier than many may have assumed. Although Powell and later Gideon are flagship federal cases, the right-to-counsel principles articulated there may be augmented and expanded through zealous state court advocacy applying state constitutional right-to-counsel provisions. 

Second, aside from right-to-counsel provisions, there are other sources of right-to-counsel law in state constitutions’ Bill of Rights-type provisions. For example, many state constitutions have open-ended due process clauses ensuring fundamental fairness, which could require the presence of effective counsel in various contexts. Some also have quasi-equal protection provisions that may have application in the right-to-counsel context; equality principals could require courts to appoint counsel to people who cannot afford a lawyer. Further, affirmative natural law provisions in state constitutions — which offer protection of life, liberty, and pursuit of happiness — are underdeveloped but could be interpreted to require state government to take affirmative steps to ensure the availability of adequate counsel in criminal cases. Because they do not have a federal counterpart, courts are less likely to limit their reach by looking to constrained federal interpretations. 

Third, state constitutions typically vest authority in state judicial branches to supervise court systems and the attorneys who practice in state courts. These powers are sometimes explicit and sometimes inherent in the state constitutional structures. For instance, state judiciaries commonly have an open-ended constitutional power to promulgate rules relating to local practice. Some states have open courts or right-to-a-remedy provisions that creative advocates may utilize to extend to counsel implications. In short, the generally accepted power of state judiciaries to supervise and control what happens on a daily basis in state courts provides a potential basis for vindication of the right to counsel distinct and separate from frozen or devolving federal constitutional precedents.

Fourth, state judiciaries today generally have responsibility for maintaining and enforcing a system of legal ethics for lawyers practicing in the state. Norman Lefstein made the case for enforcement of ethical rules in the systemic right-to-counsel context over a decade ago. Recent state case law suggests that enforcement of right-to-counsel requirements through application of ethical standards is getting a close look. For example, in Public Defender for Marion County Oregonv. Izell Guajardo-McClinton, the plaintiff alleged that case overloads and severe staff shortages forced public defenders to approach representations with a lack of diligence, in violation of the Oregon Rules of Professional Responsibility. Although the case was dismissed as moot after the public defender at the center of the case left his job, in February an Oregon trial judge ruled in Shannon Wilson v. Oregon Public Defense Commission that public defenders could not be required to take on more cases than they have the time to properly handle.

Finally, there are also a number of important, relatively recent empirical developments that may strengthen right-to-counsel claims in both state and federal courts. The indelible point, made by the Innocence Project and similar organizations around the country, that false convictions are all too common should be cause for alarm across the ideological spectrum. New empirical work suggests that public defender caseloads put extraordinary pressure on provision of effective right to counsel, which likely leads to wrongful convictions. In multiple recent cases around the country, plaintiffs have alleged that heavy caseloads contribute to right-to-counsel violations — the Washington Supreme Court last June even ordered public defenders to reduce their caseloads.

State courts and constitutions can offer meaningful solutions to gaps in the right to counsel. With a U.S. Supreme Court poised to weaken the right, it is more important now than ever that judges, advocates, and policymakers work to realize that potential.

Hon. Brent R. Appel is a Distinguished Lecturer and Jurist in Residence at Drake Law School and a retired justice of the Iowa Supreme Court.

Suggested Citation: Hon. Brent R. Appel, The Right to Counsel in an Age of Case Specific and Systemic Inadequacies, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 15, 2026), https://statecourtreport.org/our-work/analysis-opinion/right-counsel-age-case-specific-and-systemic-inadequacies