And the reasons are no mystery. Over the intervening half-century, Congress and state lawmakers consistently have refused to fund public defenders' offices adequately. And, as it has become more conservative since , the United States Supreme Court has refused to force legislators to do so. So today, the justices won't secure the basic fair trial rights they themselves recognized in Gideon. And today, elected officials see no political value in spending the money it would take to ensure that every American has an opportunity for equal justice.
It's not that there aren't solutions to the problem of securing a meaningful right to counsel for all litigants. There are plenty of solutions floating around. The problem is the political and legal will to implement those policy choices -- to make good on the promise the Supreme Court made to America 50 years ago amid such hope and fanfare. Some beer and wine were stolen, some Cokes, too, and coins from the jukebox. He lived nearby, was a regular at the poolroom, had a history of criminal conduct and, crucially, an eyewitness swore Gideon had been inside the poolroom at the time of the crime.
Two years later, in the opening paragraphs of the Gideon ruling, here's how Justice Hugo Black would describe what happened at trial:.
Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Information filed in this case. But the Florida judge was wrong.
The law did permit him to give Gideon a lawyer even though the case was not a capital one. And the law required the judge at least to inquire into the possibility that Gideon's Sixth Amendment right to a fair trial would be violated in that case without the appointment of counsel. We know from the official transcript of the trial that Gideon's judge did not discuss this possibility with him. We do not know, because evidently no transcript ever was made, whether this judge had such a discussion with Gideon at the latter's arraignment.
By the time of Gideon's trial, the Supreme Court had created a flexible rule wherein a criminal defendant in state court, a defendant like Gideon, could get court-appointed counsel if he could establish a "special circumstance" that warranted the appointment. His age, his educational background, his mental history, his prior experience in court, the complexity of the case, and the severity of the charges -- all of these were factors Gideon's trial judge was required to consider, on the record, before reaching a decision about the defendant's request for a lawyer.
Even Gideon's drinking habit, which evidently was significant and well-known in the tight-knit community of Panama City, might have been dispositive. The so-called "special circumstances" test had come down from the Supreme Court in a famous case styled Powell v.
Alabama , a decision about the "Scottsboro Boys. Quickly convicted and sentenced to death, the hapless youths found help at the Supreme Court, which recognized that their fair trial rights had been denied. The decision to appoint counsel for the boys had been made in a "casual fashion" on the morning of trial rather than at the time of their arrest, the justices concluded.
The defendants had been entitled to court-appointed lawyers at the start of the case for what the justices called "vitally important Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
In a capital case, the Powell court concluded, "where a defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
But it applied only to capital cases. Six years later , the Court extended the principle to non-capital cases in federal court. And in , in a case styled Betts v. Brady , the justices extended that principle to non-capital cases in state court which then, as now, handle the vast majority of criminal cases. But the Supreme Court in Betts refused to recognize a right to counsel in all cases.
Such a blanket rule, the justices concluded in , was not "dictated by natural, inherent, and fundamental principles of fairness. It also meant that defendants who sought a court-appointed lawyer but didn't get one could raise the issue on appeal. Twenty years after Betts , by the time Gideon's case came around, it was clear to most prosecutors, judges, and defense attorneys that this case-by-case approach to counsel was inefficient.
For once in his life, Clarence Earl Gideon was in the right place at the right time. In America today, the legacy of Gideon may be visible in virtually every courtroom in every state on every day of the week. If you count federal, state, and county public counsel, there are approximately 15, court-appointed defenders representing millions of criminal suspects, defendants, and inmates all over the country.
These lawyers are supported by thousands more administrative assistants. Tax dollars pay for virtually all of it. But despite the time and effort offered up by these advocates, and despite the constitutional mandate that no person should be deprived of an effective advocate, it is not enough.
There are simply too many criminal cases, too few lawyers to handle them, too little in public defense budgets, and far too little political power for reformers seeking to make good on Gideon 's promise. The leading scholar in this area is probably Stephen B. Wainwright ," Bright joined another criminal justice expert, Sia M. Sanneh, a seasoned lawyer with the Equal Justice Initiative, to cogently describe the scope of the problem:.
Every day in thousands of courtrooms across the nation, from top tier trial courts that handle felony cases to municipal courts that serve as cash cows for their communities, the right to counsel is violated.
Judges conduct hearings in which people accused of crimes and poor children charged with acts of delinquency appear without lawyers.
Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before and will never see again. Innocent people plead guilty to get out of jail Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads, who practice triage as they attempt to represent more people than is humanly--and ethically--possible without the resources to investigate their clients' cases, retain expert witnesses, or pay other necessary expenses.
As a result, they are unable to assess cases and give their clients informed, professional advice during plea negotiations that resolve almost all cases in 'system of pleas, not trials. In the rare cases that go to trial, they often cannot seriously contest the prosecution's cases, raise and preserve legal issues for appeal, or provide information about their clients that is essential for individualized sentencing. For the poor person accused of a crime, there may be no adversary system.
Prosecutors may determine outcomes in cases with little or no input from defense counsel. No one wants to pay for more public defenders. Or, better put, few people in political power care enough about the gross injustices being done to poor people to spend more money trying to ensure they receive adequate representation. Simon in a thoughtful law review piece published a few years ago. Bright and Sanneh don't just blame lawmakers. And the problem is made worse, they contend, because the "Supreme Court has refused to require competent representation, instead adopting a standard of 'effective counsel' that hides and perpetuates deficient representation.
Earlier this month, echoing Justice Stevens, Bright told me via email that this problem isn't likely to be solved by a purely top-down approach from the Supreme Court or Congress. So does San Mateo County, California, which provides representation through its bar association. But Colorado and other states have state-wide public defender programs that work well. On the other hand, Bright notes, other states "like Alabama, California, Michigan, New York, and Texas have not put anyone in charge on a state-wide basis but have left selection and administration of a system to their counties.
And this fractional approach is a direct result of the concept of federalism -- of the Supreme Court's concerns about dictating too much to states and counties about how they should comply with the right to counsel. Over the years, the Gideon case has become more than just a story about the recognition of a right. It has come to represent an idea -- an ideal, really -- representing much of the best we like to believe about our Supreme Court, our justices, and our rule of law. Gideon's story is really a fable.
A mighty court hears the cry of the lowliest man. It reaches down to help. It appoints for him one of the most learned counselors in all the land.
The state is blunted. Some states assigned counsel at public expense to indigent defendants in felony trials. Did a fair trial require states to provide a defender at public expense?
The emergence of plea bargaining as the typical way to process offenders through the legal system raised another question. What is the right to counsel when the location of criminal justice moves from the courtroom to the police station, which is what happens when suspects confess during interrogation in exchange for more lenient punishment?
Do defendants have a right to counsel during police interrogations and other pretrial stages of the criminal process? Every man that findest himselfe unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noo fee or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.
The American system of divided government, federalism, has complicated answers to these questions. For most of our history, the control and punishment of crime was a state responsibility.
State law defined crimes, and each state established its own rules for a fair trial. Although most states agreed on the basic elements of due process, no national standard existed until the s when, in Powell v. Alabama , the Supreme Court recognized a right to counsel in capital cases.
This decision began a series of cases that tested what this obligation meant in practice, but judges produced no uniform rule on when states were required to provide a lawyer. Finally, two cases in the s, one from Florida and one from Illinois, helped to establish the national standards we see portrayed in television dramas.
One of them met widespread approval; the other began criticism still heard today. Clarence Earl Gideon was a habitual thief. Shortly after his release, he was convicted of robbery and drew a ten-year prison term.
Soon, his life fell into a pattern common to habitual criminals—release from prison, another crime, another term, another release, another crime. All the convictions were for small-scale robbery. In between his stints in prison, he married three times and had five children. An alcoholic, he never held a job for long and could not provide for his family. On June 3, , Gideon was arrested once again, this time for breaking into a bar in Panama City, Florida, where he had moved hoping for a fresh start.
He requested the court to appoint counsel to represent him, but the judge refused, citing state law that granted it only to defendants in capital cases. Lacking funds, Gideon defended himself, but he was outmatched. He questioned witnesses inexpertly, and he did not raise a single objection. Sitting in prison, Gideon petitioned the Supreme Court in longhand on five pieces of lined paper, asking the justices to take the case because he did not get a fair trial.
Fortas later became a Supreme Court justice. The case ultimately rested on the straightforward argument that for all serious crimes, the due process clause of the Fourteenth Amendment, which applied to all states, incorporated or included the right to counsel as required by the Sixth Amendment.
If defendants were too poor to afford a lawyer, then states had to provide one for them. More than twenty state attorneys general urged the justices to adopt this rule because previous decisions had left the law too confused.
The Court agreed, even though the justices had to abandon earlier decisions that left this matter to state discretion. Gideon won a new trial, this time with a public defender paid for by the state. An effective cross-examination persuaded the jury to return a verdict of not guilty, and finally Clarence Earl Gideon was a free man.
The decision made little difference in his life; he continued to get in trouble with the law. He died as he lived, a pauper, but his appeal made history, as he appeared to recognize in a letter to his attorney while waiting for the Supreme Court to decide his case. Gideon v. Wainwright was a call for a new definition of fair trial, and most people agreed with its conclusion: at a minimum, due process required an attorney for poor defendants, regardless of where they lived.
Further, while most jurisdictions do not require an attorney to proceed with full representation of a client after the client attempts to commit perjury, some jurisdictions do require that the attorney stops representing the client, while other jurisdictions require that the attorney continues the representation.
Please help us improve our site! No thank you. LII Wex Right to counsel. Right to counsel Primary tabs Overview The right to counsel refers to the right of a criminal defendant to have a lawyer assist in his defense, even if he cannot afford to pay for an attorney. The Sixth Amendment gives defendants the right to counsel in federal prosecutions. However, the right to counsel was not applied to state prosecutions for felony offenses until in Gideon v.
Wainwright , U. This was done through the incorporation doctrine. However, for certain misdemeanors , there is not a guaranteed right to counsel.
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