I’m a strong believer in absolute Constitutional rights and strong individual rights and everything else the ACLU supports. I also enjoy spinning scenarios and carrying them to a conclusion, the odder the better.
In the Sixth Amendment, the final clause guarantees the right to legal counsel to all people accused of a criminal offense. In modern terms, this means the city or county in which the trial is held will pay for a lawyer to represent indigent defendants. These lawyers sometimes work pro bono, true, but those in my region expect to be paid competitive wages.
Now, suppose Hill County (which funds the county courthouse in my hometown) is facing hard times and has funded police to the exclusion of lawyers. The lawyers have split for Great Falls or Missoula or points west, and the poor people in the lockup now have been told they will face trial without representation. The County Commissioner has said “Constitutional rights are well and good, but when it impacts the bottom line, you must live in the real world. You can’t get blood from a stone.”
Lots of cases get appealed, some of them get overturned, and the county spends even more money on that than it would have on proper counsel in the first place. Penny-wise and pound-foolish, as they say. Of course, this effect is reduced by the many indigent defendants who don’t know that they can file an appeal – they’re just screwed.
Nametag: So, in my hypothetical, nobody would step in (from the state level, say, or the federal) and halt a host of unconstitutional trials? Interesting. Difficult to believe, but interesting.
In my state, this is a major crisis. The state legislature has refused to fund anywhere near adequate levels of indigent defense. The results are appalling.
In one county, the only public defender merely tells the defendent what the plea bargain is and tell them to take it or leave it. End of story. Hardly taking a pro-defendent stance.
There is virtually no chance of going to trial with any competent legal help. Ergo, hard to set up constitutional challenges.
Note that a large number of defendents really are innocent. In my county, a guy was just released after 4 months in jail (too poor to raise bail) after a bunch of volunteer case workers determined that there was actually no case against him at all. The county DA was just squeezing the guy to get him to squeal on somebody else. The public defender never investigated his case at all.
If all these inadequately funded cases, including the plea bargains, were thrown out, I’m guessing about 2/3 of the state prison population would be released.
Let me preface this by saying that I am as strong a defender of individual rights as there is in this country. However, I do not see any problem with the scenario laid out in the OP. The Sixth Amendment states
I am aware that the current interpretation of this amendment is that a defendent who cannot afford to hire a lawyer must be provided with one, but I would argue that this is not what the amendment provides. A stance by any level of government that they will not pay for a defendant’s lawyer is in no way a denial of his right to counsel.
Does the government’s refusal to build me a church infringe upon my right to free exercise of religion? Does the government’s refusal to buy me an AR-15 deny my right to keep and bear arms? No, of course not. Similarly, the government’s refusal to hire a lawyer for me in no way vacates my right to “have the Assistance of Counsel.”
What could the judge do? Recuse himself from an invalid trial? I assume that if all the judges with jurisdiction recused themselves from the worst cases (a judicial strike?), they would need to do something, especially in light of the guarantee of a speedy trial.
Could a judge order a lawyer to perform a defense at penalty of a bench warrant? Probably not, but still …
The judge hearing the case can ask the defendent why he doesn’t have a lawyer, and if one isn’t provided for the defendent the judge could simply threaten to dismiss the case and let the defendent go free.