Gideon at 50: One Step Forward, Two Steps Back?
By Amanda Fischer and Carissa Byrne Hessick – June 6, 2013
Anniversaries are a big deal. They mark weddings, births, graduations, and other life-changing events. We celebrate anniversaries and often feel a sense of nostalgia when we remember what happened so many years ago.
This year, criminal defense attorneys and defendants are celebrating a milestone anniversary. Fifty years ago, in 1963, the U.S. Supreme Court decided Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon held that the Sixth Amendment mandates the assistance of counsel in all felony cases. If a defendant is indigent and cannot afford his or her own attorney, the state must appoint one for the defendant.
Clarence Earl Gideon was charged with the felony offense of breaking and entering with the intent to commit a misdemeanor. Gideon appeared at trial pro se and requested that a lawyer be appointed to represent him. The trial court refused, noting that Florida appointed counsel for indigent defendants only in capital cases. Gideon thus conducted his own defense at trial, and he was convicted.
But this was not the end of Gideon’s struggle. He filed a habeas petition with the Florida Supreme Court, which summarily denied his petition. Gideon then petitioned the U.S. Supreme Court, and the Court granted certiorari. At the time, Betts v. Brady, 316 U.S. 455 (1942), was the controlling case regarding a criminal defendant’s right to counsel. It required the appointment of counsel for indigent defendants only when their convictions otherwise would lack “fundamental fairness”—a determination that was made on a case-by-case basis. The Gideon Court reversed Betts v. Brady, holding that counsel must be appointed in all felony cases.
Gideon is often heralded as a victory for the rights of criminal defendants. With the assistance of counsel, one might expect fewer criminal defendants to end up incarcerated. After all, even “the intelligent and educated layman has small and sometimes no skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 69 (1932). But as Professor Paul Butler recently noted, a poor defendant has a much higher chance of being incarcerated today than 50 years ago when Gideon was decided. Paul Butler, “Gideon’s Muted Trumpet,” N.Y. Times, Mar. 17, 2013.
Gideon is not the only right-to-counsel case whose doctrinal principles have not resulted in the expected practical gains for defendants. In 1984, the Supreme Court recognized that defendants have not only the right to assistance of counsel but also the right to effective assistance. Strickland v. Washington, 466 U.S. 668 (1984), makes clear that a defendant’s Sixth Amendment right to effective assistance of counsel has been violated if his or her counsel’s performance was deficient and if that deficient performance prejudiced the defendant. Although Strickland would seem to ensure that all defendants receive a vigorous defense, that has not been the case. The Strickland Court admonished judges to review attorney performance deferentially, and it cautioned against the development of bright-line rules for attorney performance. As a result, the ineffective assistance standard has been notoriously difficult for defendants to meet—indeed, in some cases, courts have refused to find ineffective assistance even when defense counsel slept through important phases of a trial. See Richard Klein, “The Constitutionalization of Ineffective Assistance of Counsel,” 58 Md. L. Rev. 1433, 1447–48 (1999).
Although the practical results of Gideon and Strickland have not been as beneficial for defendants as the legal principles they articulated would suggest, they have improved the lives of at least some defendants. For example, relying in part on the principles articulated in Gideon, Strickland, and United States v. Cronic, 466 U.S. 648 (1984), the Louisiana Supreme Court declared that it would presume that certain defendants in New Orleans were receiving ineffective assistance of counsel, based on the public defender’s excessive caseloads and insufficient financial support. See Louisiana v. Peart, 621 So. 2d 780 (1993). That ruling resulted in legislative action to increase funding for public defenders in the state.
What’s more, three recent cases from the Supreme Court suggest that it may be renewing its commitment to the Sixth Amendment right to counsel. Padilla v. Kentucky, 559 U.S. 356 (2010), extended the right to effective assistance to include an obligation to advise defendants correctly on the immigration consequences of a guilty plea. Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), extended the right of effective assistance to the plea negotiation process. These three cases may indicate a new practicality on the part of the Court. Lafler and Frye demonstrate a recognition that most cases are resolved through plea negotiations and that the failure of counsel during those negotiations may result in a defendant serving more than the “going rate” for the particular crime of conviction. Padilla indicates a new appreciation on the part of the Court for the fact that the collateral consequences associated with conviction—in particular, immigration consequences—may be as important (if not more so) to a particular defendant than the criminal sentence he or she receives. Whether the practical effects of these new cases will benefit criminal defendants as much as their doctrinal principles suggest remains to be seen.
As we celebrate the 50th anniversary of Gideon, we should commemorate the doctrinal gains that have been made by criminal defendants in the past half century. But we should not lose sight of the fact that, even though the legal standards governing the appointment and performance of counsel have improved significantly, the practical outlook for most criminal defendants remains bleak. Legislative appetite for increased sentences, aggressive charging policies by prosecutors, and the diminishment of judicial discretion to impose lenient sentences have all contributed to a criminal justice system that incarcerates more than 2 million people. We should be thankful that our justice system has recognized legal standards designed to protect the life and liberty of all individuals through the provision of counsel. But we should also recognize that broadly written rules that provide no clear guidance on what it means to provide the “guiding hand of counsel,” along with the lack of funding for public defense and weak enforcement of those legal standards by the courts, have left the full promise of Gideon unfulfilled.
Keywords: litigation, minority trial lawyer, Gideon, legal standards, plea negotiations, right to counsel, criminal defendants, effective assistance of counsel
Amanda Fischer is a 2013 graduate of the Arizona State University Sandra Day O'Connor College of Law in Tempe, Arizona, and Carissa Byrne Hessick is a professor at the the S.J. Quinney College of Law at the University of Utah in Salt Lake City.