How Americans Lost the Right to Counsel, 50 Years After 'Gideon'

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You have a right to an attorney in a criminal case, even if you cannot afford one. The Supreme Court said so half a century ago. But today that precious right is systematically ignored or undermined.

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Clarence Earl Gideon after his release from prison in 1963 (AP)

Next Monday, America will quietly mark one of the most profound anniversaries in its legal history. Exactly 50 years ago, on March 18, 1963, the United States Supreme Court unanimously announced in Gideon v. Wainwright that the Sixth Amendment guarantees to every criminal defendant in a felony trial the right to a lawyer. "Reason and reflection," Justice Hugo Black wrote, "require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him."

The Gideon decision, heralded in its own time, has profoundly changed America's criminal justice system ever since. In the past half century since the ruling, the constitutional right to counsel has ensured that millions of criminal suspects -- the guilty, the innocent, and the somewhere-in-between -- have been aided by earnest, capable lawyers. The mandate of Gideon has forced prosecutors to be fairer and more honest in their dealings with defendants. It has burdened trial judges with additional pretrial motions. As a result of all of that, in a justice system designed to test evidence rather than seek truth, the Gideon ruling undoubtedly has resulted in more accurate results at trial.

Over the past half- century, lawmakers have refused to fund public defenders' offices adequately. And, as it has become more conservative since 1963, the Supreme Court has refused to force them to do so.

There is, indeed, much to celebrate about Gideon. The story of the case -- that is, the story of Clarence Earl Gideon -- is remarkable in every way. It is also impossible to imagine it taking place in today's world of law and justice. Here was a lowly man, like the Gideon of the Old Testament, who achieved a mighty and mightily unexpected victory on behalf of his fellow citizens. Here was a petty thief in Florida who told a trial judge that he deserved a lawyer, who was convicted and sentenced without one, and who was in the end proven right by the United States Supreme Court.

In Gideon, the justices of the Warren Court reached out eagerly to protect a suspect's fair trial rights; prosecutors around the country urged them to do so; and when Gideon got his second trial, this time with a seasoned lawyer, his quick acquittal struck home the value of the right which had just been recognized. Gideon is famous as Supreme Court precedent, and as popular narrative, because it is such an easy legal story to understand. And because all of us, at one point, may wonder what it feels like to be charged with a crime -- and to be all alone.

But 50 years later there is also much to mourn about Gideon and the Supreme Court standards that followed it. Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation's poorest litigants. Yes, you have the right to a court-appointed lawyer today -- the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer -- often just a "potted plant" -- by your side, you've earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.

Today, sadly, the Gideon ruling amounts to another unfunded mandate -- the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else. 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 1963, the United States Supreme Court has refused to force legislators to do so. "I think the Court doesn't have the initiative to get involved in improving the administration of justice in every state," former Justice John Paul Stevens told me in late January. "The Court's really not the institution to get involved in that."

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.

The 'guiding hand of counsel'

Someone broke into the Bay Harbor Poolroom in Panama City, Florida, in the early morning of Saturday, June 3, 1961. Some beer and wine were stolen, some Cokes, too, and coins from the jukebox. The take wasn't much -- far less than $50, a petty larceny -- and shortly afterward Clarence Gideon was arrested and charged with the crime. 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:

The COURT: Mr. 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.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

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." The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison

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 1932 decision about the "Scottsboro Boys." The defendants were black teenagers, dubiously charged with raping two white teenagers in the Deep South, and their trials had unfolded in a macabre way. 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 ... consultation, thoroughgoing investigation and preparation" before trial." For the Court, Justice George Sutherland wrote:

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." It was an extraordinary liberal ruling from an extraordinarily conservative court. But it applied only to capital cases. Six years later, the Court extended the principle to non-capital cases in federal court. And in 1942, 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 1942, was not "dictated by natural, inherent, and fundamental principles of fairness." This meant that trial judges were not required to appoint counsel unless "special circumstances" existed in a particular case. 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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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