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In forthcoming article, Prof. Ossei-Owusu reveals role of race in the development of the 6th Amendment right to counsel

September 23, 2019

A new article by University of Pennsylvania Law School professor Shaun Ossei-Owusu reveals the critical role of race in the development of a staple of the American criminal justice system: the constitutional guarantee of an attorney for defendants too poor to afford one. “The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel,” forthcoming in the University of Pennsylvania Law Review, marshals “archival documents, primary sources, oral histories, case law, and secondary literature” to trace the history of indigent defense and the Sixth Amendment right to counsel from the early twentieth century to the present, revealing how racial politics influenced the right’s creation, development, and later curtailment. 

Shaun Ossei-Owusu is an interdisciplinary legal scholar with expertise in legal history, criminal law and procedure, civil rights, and the legal profession. His work sits at the intersection of law, history, and sociology, with a focus on how governments meet their legal obligations to provide services and benefits to poor people and racial minorities.

“[C]urrent scholarship overlooks the instrumental role race played in the development of right to counsel jurisprudence,” writes Ossei-Owusu. “History demonstrates that indigent defense is not a part of the criminal justice system that simply produces racially disparate outcomes. Instead, the politics of race fundamentally shaped indigent defense jurisprudence and policy. Inattention to this fact limits understandings of the right to counsel and ultimately of the criminal justice system itself.”

Ossei-Owusu begins the history in the period from 1890 to 1931, before the Supreme Court first suggested the existence of a right to counsel in Powell v. Alabama. “The absence of an affirmative right to counsel did not mean the absence of administrative structures that provided counsel to indigents,” he writes. “Before an affirmative right to counsel was enshrined by courts, it was fulfilled by legal aid societies that provided assistance in criminal cases as well as municipally funded public defender offices that were modeled in part after legal aid societies.” Race — which during this period was also understood akin to nationality—played a significant role in the expansion of both kinds of legal assistance to the poor. As legal aid societies proliferated, part of the justification for their existence was to protect “poor, uneducated, ethnic white immigrants” from exploitation by unscrupulous “shyster” lawyers, who were stereotypically depicted as “not fully white” southern and eastern Europeans.

Because many legal aid societies paid insufficient attention to nonwhites, racial minorities including African-Americans, Chinese Americans, and Mexican Americans “developed their own legal aid schemes that also hinged on race,” and created “multipurpose organizations that provided civil and criminal legal aid as well as a host of other social services.”

The Supreme Court decided Powellagainst this backdrop, “carv[ing] out a limited right to counsel [which] was infected by racial politics.” The case saw nine African-American teenagers accused and then convicted of raping a white woman, all without having adequate access to legal counsel. In reversing the convictions, the Supreme Court’s decision “created a template for future right to counsel cases that emphasized the race, indigence, and illiteracy of defendants.” Indeed, in the three decades after Powell, the Court’s decisions on the right to counsel “required courts to examine the appointment of counsel on a case-by-case nature” and used a “special circumstances” test that depended heavily on race. Such cases “invariably involved indigent black defendants who were young, poor, illiterate, or some combination of the three.”

“The 1960s ushered in a new era of right to counsel expansion that coincided with racial progress,” writes Ossei-Owusu, and it was during this period that the Court decided Gideon v. Wainright (1963), which famously extended the federal right to counsel to the states. While Gideonis “typically understood as race-neutral, [the case] was actually influenced by racial considerations,” Ossei-Owusu explains. Oral histories from the lead counsel in Gideon reveal that “[t]he Court purposefully selected Gideonas its vehicle to expand the right to counsel in an attempt to move far away from a decidedly racialized special circumstance test.” Clarence Earl Gideon was a poor white man, and in the public response to the case, was seen a “sympathetic figure” who had been “denied justice.”

After Gideon, the Supreme Court continued to expand the right to counsel, extending it to misdemeanor cases in 1972’s Argersinger v. Hamlin. However, Ossei-Owusu explains, the latter decades of the twentieth century witnessed the rise of racialized “law and order” politics, which were expressed “attempts to close perceived legal loopholes that exonerated defendants,” and helped  usher in the current era of mass incarceration. Thus, Supreme Court cases on the right to counsel since the 1980s have rendered ineffective assistance of counsel claims much more difficult to prove. “The deluge of wrongful convictions due to deficient lawyering are telling; they offer a glimpse of who bore the consequences of a right to counsel jurisprudence that enabled ineffectiveness,” writes Ossei-Owusu.

In unearthing the centrality of race to the evolution of the right to counsel, Ossei-Owusu “encourages reformers to consider indigent defense shortcomings as an issue with racial ramifications” and urges racial justice advocates to “figure indigent defense more prominently in their reform efforts.” In doing so, “reformers, along with scholars and indigent defense providers, can reexamine how the right to counsel came to be as well as the limits and possibilities for administrative change.”