I really enjoy Diana Hsieh’s podcast “Philosophy in Action”, but I think that she insufficiently chewed her reply to the following question:

Why is receiving the counsel of an attorney a right while receiving health care is not? In both cases, you would receive something that you need for free from the state. So what’s the difference, if any? Why should a repeat offender have access to free legal counsel at taxpayer expense while an innocent, law-abiding sick person shouldn’t receive life-saving medication or treatment at taxpayer expense? In the former case, the criminal might lose his liberty, but in the latter case the sick person might die. So what I am missing?

While you can listen to her full reply, let me attempt to fairly summarized a troubled part of her position:  an indigent defendant in a criminal trial does NOT have the right to defense counsel paid by the government, because a right to have an attorney does not mean that someone else is obliged to pay for that attorney.

In my judgment, she is evaluating this issue from the wrong context.

First, as validation, we should run through a few use cases to give them a smell test.  Let me demonstrate by altering the concretes, but staying true to her stated application of principle:

(1)    An indigent non-English speaking defendant in a criminal trial does NOT have the right to a translator paid by the government, because a right to due process does not mean that someone else is obliged to pay for that translator;

(2)    An indigent mentally retarded defendant in jeopardy of life in prison without parole does not have the right to a defense attorney paid by the government….;

(3)    An indigent defendant who has opted for a jury trial does not have a right to jurors paid by the government or the jurors’ employers…

Now if you were sympathetic to her original position, how do these restatements of the relevant principle grab you?  Are you identifying that something essential is missing here?

Hsieh herself while chewing came up with three unresolved problems with her formulation:

(1)    Current statutes are so complex and non-objective that an individual requires an attorney to navigate them; therefore, during a transition period towards better laws, she concludes that indigent defendants should in fact be provided with a government paid defense attorney;

(2)    That even with objective laws to accommodate indigent defendants without an attorney a wholly new and not yet conceived judicial system may need to be implemented with new responsibilities and incentives for judges and prosecutors to account for their defense of the indigent accused; and

(3)    That it can be appropriate for a judge to order a government paid defense attorney when the defendant is not capable of being their own advocate in court.

To summarize her points which she did not explicitly integrate: while there is not a right to a government paid defense attorney for an indigent accused, failing to do so is incompatible with reality unless a herculean effort is performed to change many man-made facts that are outside the scope of a particular trial, and such failing may contradict metaphysically given facts related to the capacity of an individual defendant.

This might not be what she meant, but it is what she said, as I evaluate it; which is why I say that she has not finished chewing yet.

Let’s take a minute and get into an actual case as looking at reality will help us untangle this.  By a case, I actually mean the case:  Gideon v. Wainwright.  The critical fact is that Gideon had two trials; in the first, he was convicted and sent to jail, but in the second, he was found innocent and freed.

During the first trial, Gideon insisted that he had a constitutional right to an attorney paid by the government, but the judge denied his plea.  After his conviction, and from prison, he appealed his case and eventually the Supreme Court agreed with him and granted him a new trial.

At the second trial, his government paid defense attorney produced a witness that impeached the prosecution’s eyewitness and demonstrated that the prosecution’s eyewitness was probably the perpetrator of the crime (breaking and entering with intent to commit petty larceny).

Did Gideon receive a fair trial the first time?  If so, why did the second trial have a different result?

Now let me pull all those threads together with an answer to the original question.

Related to the comparison of a funding right to an attorney and health care, this compares fundamentally different things, which are differentiated by objectively valid government functions (the courts) and illegitimate government interference in contract rights.

Related to the secondary question of government paying the attorney of an indigent defendant, I am going to assume that the questioner is talking about concretes in reality, a criminal case in the United States, and by specifying “right” the questioner does not include the separate issue of the Legal Aid program.

With those clarifications, as to whether it is a right, the simple answer is yes and no.

As a matter of philosophy of politics, do individuals have a man qua man right to a government paid attorney?  Absolutely NOT; however, an individual does have such a right to a fair trial related to the virtue of justice.

As a matter of a civil right in the United States does an indigent defendant have a “civil” right to a government paid attorney?  Yes, but only in a limited number of cases related to his fundamental right to a fair trial.

Civil rights are procedural rights established by constitution, statute, and administrative or judicial rulings.  Their purpose is to protect fundamental rights, man qua man.

Thus, in fuller context, through the U.S. Constitution, statutes of the various states, and rulings of the federal courts, U.S. courts protect an individual’s fundamental right to a fair trial by assigning a government paid attorney to qualified indigent defendants in particular types of criminal cases as a matter of a civil right.  Further that is a legitimate government expense related to protecting the defendant’s individual right to a fair trial.

This distinction between fundamental (philosophical, individual) rights and civil rights untangles what Hsieh left unchewed by making the hierarchy and relationship explicit.

Related to selfish citizenship, what are some lessons learned?

• Even when you respect someone and agree with them on many things, it is still your responsibility to evaluate a relevant issue with your own independent judgment.
• Concretes from reality, and on political issues especially concretes from history, should be used as evidence to test your conclusions against reality.
• When claims are made that rights conflict, it is important to understand the relevant context and hierarchy to make what was tangled clear.
• When you attempt to fix a relatively uncomplicated issue like government payment of defense attorneys for indigents and deduce that an entirely new judicial system needs to be created from scratch, stop digging because you have lost your way.

Extra points:  For a popular treatment of the Gideon decision, see Anthony Lewis’ book Gideon’s Trumpet, or the movie starring Henry Fonda.