Let’s Talk about the Constitution

By Kim Ball*

Do you remember where you learned about the guarantees of our Constitution? Was it in sixth grade civics class like it was for me? My daughter Claire, who is 11, is going into sixth grade this fall, and I’m curious about whether or not she’s going to be taught about the Constitution and, specifically, about the Sixth Amendment’s right to counsel.

When I was doing trial work in Arkansas in the ‘90s, people said that the average education level of a jury was about eighth grade. Couple that with the findings in Americans’ Views on Public Defenders and the Right to Counsel, the public opinion polling effort my office conducted, that showed more than half of focus group participants did not know that the right to counsel is in the Constitution. It also showed that among lawmakers and the public alike, there appears to be a general lack of awareness about what the right to counsel means and the reality that it is not being upheld as directed by the Constitution and the landmark 1963 Supreme Court case Gideon v. Wainwright.

Last fall the Annenberg Public Policy Center at the University of Pennsylvania, released the findings from its annual national survey about the Constitution that showed that Americans are poorly informed about basic constitutional provisions. Thirty-seven percent of respondents could not name any rights associated with the First Amendment without prompting, and far fewer could name First Amendment rights other than freedom of speech—and that’s the First Amendment! It is perhaps not surprising then that we found so few people know about the Sixth Amendment and its right to counsel in our research.

As a former assistant prosecutor, I know the power structures in the criminal justice system are not balanced between the state and the defendant. Coming out of law school, I thought the system was supposed to be fair and just. So, imagine my surprise when I witnessed many bail hearings where defendants didn’t have legal representation. 

I’ve traveled to a lot of courts in this country throughout my career, seeing well-meaning judges and prosecutors tipping the balance of power because they were short on time and resources and didn’t have a clear understanding of constitutional law. Knowing that all of us in the criminal justice system want a fair and just outcome, I started the Right to Counsel (R2C) National Campaign with friends and colleagues to raise awareness about the need for courthouses all over the country to look at how their policies and procedures are playing out in real time when it comes to ensuring the right to counsel. My experience told me we needed a public awareness campaign, because we’ve gotten off track when it comes to ensuring the Sixth Amendment right to counsel, and part of the reason for this is a basic lack of information.

Advancing the R2C National Campaign has been harder than I expected. My good friend Norm Reimer, the executive director of the National Association of Criminal Defense Lawyers, told me it would be hard; he didn’t say it would be this hard! One of the biggest challenges that R2C needs to overcome is the lack of understanding that the right to counsel is a constitutional right. As confirmed in Americans’ Views, not all Americans know that guaranteeing every person accused of a crime has access to a competent lawyer is a fundamental American right written into our Constitution and that this right is being denied all across the country.

There are many reasons this issue has been swept under the rug and not garnered the attention it should, and I’m asking you to stand with me and take a good hard look at what’s going on. And not just at trial stages but also at bail hearings and first appearances where many defendants don’t have legal representation. Research shows that without counsel at these stages, defendants face more jail and prison time and have higher recidivism rates. Yes, our dockets are long and crowded, and many citizens that need mental health services are ending up in jails and courtrooms. But that’s not a reason for us to forget about the Constitution. Instead, it’s another reason to stand up and work to ensure that all courts provide and protect our right to counsel—a liberty that’s enshrined in the Constitution. 

As my daughter heads into sixth grade, I can’t help but feel strongly that we need to do a better job educating our youth about the Constitution. We need to make sure that they learn how important our constitutional rights are and what they are. We must not forget the Sixth Amendment and its right to counsel. The right to counsel is the cornerstone to protecting our liberty—and all other Six Amendment rights—in the criminal justice system.

I’m now inspired to give a presentation at Claire’s school next year about the Sixth Amendment. Join me! Let’s pledge to educate our youth on this important issue. I’ll put together a presentation on the Sixth Amendment that we can all use at middle school and will post it on our website at the beginning of the school year. Stay tuned, and once it is ready, take it and present it at your local school.

Together, let’s become more informed and make sure our youth are informed citizens that know their rights and can identify when those rights are being denied. Let’s increase the baseline of knowledge and ensure that by the time my daughter is my age, polling will find the majority of Americans know their constitutional rights, and there will no longer be a Right to Counsel National Campaign, because it’s no longer needed.

Kim Ball is the executive director of the Justice Programs Office