March 18, 1963 – The Supreme Court Decided Gideon V. Wainwright; What Were Its Effects?

On this day in history, the Supreme Court ruled that the states are required to provide legal counsel to criminal defendants who are unable to pay for their own defense. You can read the full decision here.

Notably, Justice Hugo Black stated in his opinion:

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.” 372 U.S. 335 at 344

Unfortunately, the right to “counsel” doesn’t always guarantee competent counsel.

Source: Monk, Linda R. The Bill Of Rights: A User's Guide. Close-Up Publishing: 1991. p. 152.

Source: Monk, Linda R. The Bill Of Rights: A User’s Guide. Close-Up Publishing: 1991. p. 152.

A 2009 report published by The National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, identified grave problems in the provision of legal representation for the poor, especially because of chronic underfunding. As the report notes:

When the defense does not measure up to the prosecution, there is a heightened risk of the adversary system of justice making egregious mistakes.”

Analyzing Gideon more specifically, in June, 2013, The Yale Law Journal published a special issue on Gideon, which you can access online here.

For example, John H. Blume, Professor of Law at Cornell Law School and Sheri Lynn Johnson, James and Mark Flanagan Professor of Law at Cornell Law School, argue in Gideon Exceptionalism, 122 Yale L.J. 2126 (2013):

As we set forth in this Essay, we think Gideon is both a “shining city on a hill” in the world of criminal procedure and something of a sham. We first discuss the extraordinary features of the decision itself, then lay out how it has survived largely intact, unlike virtually all other Warren Court criminal procedure decisions. Then we turn to the bleaker side of the Gideon story, first illuminating how the stingy law of ineffective assistance of counsel renders Gideon’s “shining city” illusory for many defendants, and then showing how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon’s promise.”

Paul Butler, Professor at Georgetown University Law Center, exposes a broader problem, in Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013). He contends:

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.”


There is also an excellent resource on the website of The Brennan Center, providing a list of links to articles examining the effects of Gideon fifty years after the decision, prefacing it with the observation:

The average amount of time spent by a public defender at arraignment is often less than six minutes per case. And that is when counsel is present and allowed to give information.”

Particularly recommended is the editorial by Georgetown Law Professor Paul Butler in The New York Times, who recounts some of the more egregious instances of “Gideon’s Muted Trumpet.”

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