'This noble ideal'

It was all a lot simpler in Gideon's day. The criminalization of America had not yet begun. The federal courts were not yet overrun by drug cases. State prisons were not teeming with millions of prisoners (2.3 million by this count). And by the time he wrote his letter from the state penitentiary the justices he had written to had come to realize that the rule they had declared in Betts was unworkable. By deciding right-to-counsel cases on a case-by-case basis, too many state court judges were refusing to appoint counsel to too many indigent defendants. And too often federal judges were vacating convictions in those cases and sending the cases back to state courts for new trials. It was a self-defeating cycle.

So Gideon's famous letter found a very receptive audience at the Supreme Court. And then the justices appointed Abe Fortas, one of the best attorneys of his time, to represent the prisoner before the Supreme Court. And then Florida appointed a bright young lawyer named Bruce Jacob, an honorable man then and now, to handle the appeal. And then, when he invited attorneys general from other states to chime in on the scope of the right to counsel, to advise the Court about a national consensus, Jacob was astonished to learn that officials in 22 states (including a young Walter Mondale) wanted the justices to expand the right. Gideon may have thought he was alone in his quest. But he had more allies than he knew.

This helps explain why the oral argument in the case, in January 1963, seemed more like a coronation. Jacob, appearing before the Court for the first time, was nervous. Later, he would recall, he counted 92 questions thrown at him during the first 30 minutes of his argument. Meanwhile Fortas, who had previously appeared before the justices, was relaxed and confident. Later, Justice William O. Douglas would write that Fortas' argument was probably the best single argument the justice had heard in his 36 years on the Court. Fortas has told colleagues that he wanted a unanimous ruling from the Court and that's precisely what he got.

Justice Black, who had dissented in Betts v. Brady, wrote the Gideon opinion. The 1942 case was overruled, he declared, and the right to counsel would now be a constitutional right recognized in all felony cases. No longer would defendants too poor to pay for their own lawyers have to convince judges that they were mentally ill or illiterate or drunk or otherwise incapable of representing themselves. No longer would trial judges have to guess at how much undue prejudice such defendants were likely to cause themselves by acting as their own counsel at trial. Echoing the tone and tenor of Justice Sutherland's poignant passage in Powell, the case concerning the "Scottsboro boys," Justice Black wrote:

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

The ruling was great news to Gideon. But it didn't exonerate him. It merely declared that he had been entitled to a lawyer when he was first tried. So he was released from prison and promptly re-tried -- this time, with a lawyer, Gideon was acquitted. He was acquitted because his lawyer was able to cast reasonable doubt upon the accuracy and credibility of the main witness against him. He was acquitted because his lawyer knew which questions to ask of other witnesses, and which jurors to remove from the panel, and which objections to make to the questions asked by the prosecutor. In the end, the lawyer Gideon fought so hard to have in his corner performed at trial the way a good lawyer should on behalf of his client. And Gideon was free.

The broken promise

During oral argument in Gideon, Abe Fortas had scolded the justices for their "failure to remember what happens downstairs" in criminal cases, an allusion to the rough-and-tumble world of police interrogations and prosecutorial mischief. It was an astute observation -- and a predictive one. Two decades later, in a 1984 case styled Strickland v. Washington, the Court forgot the "downstairs" truths to many criminal cases. The justices issued a decision that subsequently denied an effective right to counsel to millions of criminal defendants. "If Gideon offers the promise of justice winning out over poverty," the constitutional scholar David Cole wrote years later, "Strickland breaks that promise, allowing the forces of inequality to triumph as only the empty symbol of equality survives."

David Leroy Washington, the defendant in the Strickland case, was given a court-appointed lawyer. But Washington was sentenced to death following a penalty phase hearing at which his lawyer did little to present any mitigating evidence to try to save his client's life. Following Washington's conviction, his new lawyers alleged on appeal that he had been denied the "effective assistance" of counsel. Because lower courts had come up with different standards in assessing the boundaries of the right to counsel under Gideon, and because those standards in many ways were contradictory, the justices accepted the case for review.

In the end, as Cole would write, the Supreme Court chose "the most difficult existing test for defendants to meet with respect to ineffective assistance claims." To show "ineffective assistance," a defendant under Strickland has to show that his lawyer's work was outside the range of professional competence and that he, the client, had been prejudiced by it. Not only that, but the justices in Strickland stressed that the range of competence was to be viewed broadly, giving great deference to the work of the lawyer, and that the showing of prejudice was to be viewed narrowly, giving little credit to the harm caused to the client.

Since the Strickland decision, the Supreme Court has recognized some "ineffective assistance" claims, but it has tolerated the individual injustices described above and thousands more.

The decision immediately undercut both the premise and the promise of Gideon. In many significant ways, the justices had returned to the federalism principles that had animated their pre-Gideon rulings -- from now on, state judges would again have broad discretion to evaluate right-to-counsel cases. The Strickland court, Cole wrote, "was evidently driven by concerns about an avalanche of such claims if the standard were too easy to meet. But the Court seems to have wholly overlooked the danger on the other side of the scale; namely, that atrocious lawyering would be executed as 'effective' because the Court set the bar for 'effective' so low."

The practical results of the Strickland decision were immediately apparent -- and devastating to defendants whose constitutional rights were prejudiced by it. "Courts have declined to find ineffective assistance where defense counsel slept during portions of the trial, where counsel used heroin and cocaine throughout the trial," Cole says, and "where counsel allowed his client to wear the same sweatshirt and shoes in court that the perpetrator was alleged to have worn on the day of the crime, where counsel stated prior to trial that he was not prepared on the law or facts of the case, and where counsel appointed in a capital case could not name a single Supreme Court opinion on the death penalty."

Cole chronicled the failings of Strickland many years ago. In the intervening years, the Supreme Court has recognized some "ineffective assistance" claims, and denied many others, but it has tolerated the individual injustices described above and thousands more. When I asked former Justice Stevens about the Court's current jurisprudence on this topic, he said he believed that states were responsible for adequately funding indigent defense work. The problem is that neither he nor his colleagues on the Court in the years since Strickland have ever punished any state for failing to do so. Today, Gideon, decided in 1963, seems as much an anachronism as Camelot itself.

Fixing the problem

In 1993, on the 30^th anniversary of the ruling, Anthony Lewis, speaking at American University, candidly recalled his own feelings while working on Gideon's Trumpet. "I was naïve about the promise of equal justice," he explained. "I assumed that our political system would vindicate the rights established in Gideon v. Wainwright, but we are far from doing that, in my judgment." Similarly, Bruce Jacob, the young Florida state attorney who lost the Gideon case in 1963, would say later: "I hoped that legislatures would meet the challenge. That was at a time in my life when I still believed that legislators want to do the right thing."

One way to accomplish the necessary reform is for civil libertarians to file expensive lawsuits forcing state officials to own up to their constitutional obligations under Gideon. Another is to convince those same officials to see the adequate funding of indigent defense services as an investment. The more states spend on public defenders, the better those public lawyers will be able to represent their clients. And the better they represent their clients, the less government will have to spend on jail costs. Never mind the constitutional commands that demand fairness and justice, it is a matter of simple economics. The more government invests at the beginning of criminal cases, the less it will have to invest at the end.

Smart people already are trying to work on the problem. Earlier this year, for example, the Criminal Justice Section of the American Bar Association urged Congress to establish a federally-funded Center for Indigent Defense Services "for the purpose of assisting state, local, tribal and territorial governments in carrying out their constitutional obligation to provide effective assistance of counsel." The idea behind this push for more federal involvement is simple -- and based on the disparate funding at the state and local level that is largely responsible for the injustices noted above and all the rest.

But it's not only about money. Through the American Bar Association, lawyers and judges also are working on solutions that candidly acknowledge "budget priorities on both the federal and the state levels make it unlikely that any imminent influx of new resources will be available for public defense." The title of this proposal is National Indigent Defense Reform and it is notable because it, too, suggests that lawyers and others have all but given up on this Supreme Court as it is currently constituted to return meaning to the premise and the promise of Gideon.

Fifty years ago, a simple, uneducated man -- "the poorest and least powerful of men," Lewis called Gideon -- asked the justices for help and got it. Such a response from the current Court is virtually unthinkable. The fact today is that there are two levels of justice in America, one for the rich and one for the poor -- the very essence of the unequal justice that Gideon was supposed to end. As Bright pointedly puts it, "it is better to be rich and guilty than poor and innocent" in America today.

In the end, 50 years after one of the most glorious chapters in the history of the Supreme Court, we tell ourselves that we are a nation of laws, and we praise ourselves for rulings like Gideon, and we extol the virtues of the Constitution in theory, but the truth is we are just lying to ourselves and each other when we pretend that there is equal justice in America. Either there is a right to counsel or there isn't. And if there is such a right, we all have an obligation to ensure it is recognized -- not just in the history books, and not just in a television movie, and not just in a dusty law book, but in the everyday lives of our fellow citizens.