The recognition of the right to counsel in all criminal cases, as solidified by the 1963 Supreme Court case in Gideon v. Wainwright, is often considered to be one of the most important shifts in the balance between individual freedom and societal justice. After all, the right to a lawyer is one of our most sacred — and oft-repeated rights.
The Gideon case, however, was just one of several efforts made by court defendants to protect their rights in court — and not every step was in their favor.
Just 20 years earlier, in 1942, Smith Betts of Maryland was arrested on a robbery-related charge. He went to trial without an attorney, was convicted, and sentenced to a prison term. Betts was not provided a lawyer because Maryland state law at the time only required counsel in capital cases — cases that are eligible for the death penalty. Betts argued that his lack of a defense attorney deprived him of competent defense in his criminal trial.
Attorneys for Patrick Brady, the warden at Betts’ facility, relied on Maryland state law that only required appointed counsel for capital crimes.
The Supreme Court decided against Betts, however. Justice Owen Roberts, writing for the court majority, even cited the Powell decision’s choice of narrow application of law: "Whether this would be so in other criminal prosecutions (apart from the Scotsboro defendants), or under other circumstances, we need not determine."[1]
Roberts further wrote “...that which in one setting may constitute a denial of due process because it is a denial of fundamental fairness shocking to the universal sense of justice may, in other circumstances, and in the light of other considerations, fall short of such a denial.” [2]
So with this existing body of law, what convinced all nine Supreme Court Justices in 1963 to break with precedent in Gideon? Writing for the majority, Hugo Black would outline how his colleagues back in the 1940s had already broken with their own precedent.
“In returning to these old precedents - sounder we believe than the new - we but restore constitutional principles established to achieve a fair system of justice,” wrote Black. [3]
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One of the earliest cases establishing access to counsel for indigent defendants was Powell v. Alabama, which arose from the infamous 1932 trial of the “Scottsboro Boys.” The Black defendants were accused of raping two white women and tried before an all-white jury, who delivered a quick verdict of “guilty.”
The defendants filed a lawsuit against the state of Alabama. In their suit, the defendants said that they were kept from securing counsel due to the rushed trial and that when counsel was assigned, their lawyers were left with virtually no time to prepare their defense.
The U.S. Supreme Court eventually heard the case and ruled in the defendants’ favor, noting that the Alabama State Constitution guarantees defendants to have access to counsel at arraignment. The Justices ruled that the original verdict was reversed and a new trial was ordered.
The Powell decision was crucial because it outlined that the presence of an attorney was not enough; the Court declared that competent counsel needed time to confer with their clients and prepare their defense with comparable time to what the prosecution was given to prepare their case.
The right to counsel was further expanded and explored in the 1938 Johnson v. Zerbst case, which stated that the right to counsel was required for all federal trials. The petitioner in the case, a South Carolina man convicted of counterfeiting currency, was not appointed counsel for his case and wound up having to defend himself -- just as Clarence Gideon would do decades later.
Justice Black wrote the majority opinion in the Johnson case, noting how the evidence of Johnson’s layman-level understanding of legal procedure put him at a clear disadvantage in his federal case.
“It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel,” wrote Black. [4]
It was the trend in Powell and Johnson that Justice Black saw as the actual precedent, with Betts as an anomaly that the 1963 case would correct.
Clarence Gideon, a Florida resident, was sentenced to five years in prison for breaking and entering. Denied a lawyer under the legal framework from the Betts case, he began to appeal his own case. From his prison, Gideon filed a petition for a writ of “habeas corpus” -- Latin for “that you have the body” -- which argued that his imprisonment was illegal due to him lacking sufficient legal counsel during his trial.
Gideon argued that trying to avoid imprisonment -- defending his liberty from five years of imprisonment -- was just as important as someone trying to avoid the death penalty defending their life in a capital case, citing the Sixth Amendment’s assertion of “right to counsel” in criminal cases.
The Florida Supreme Court rejected Gideon’s claim; he appealed to the federal court system, up to the U.S. Supreme Court. In a unanimous decision, all nine Supreme Court justices ruled in Gideon’s favor.
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Since the Gideon decision, municipalities and states have developed some form of indigent defense services.
Some local governments have a “public defender’s office,” where an elected or appointed government official who both takes on cases for indigent defendants and oversees junior attorneys for the same purpose -- similar to a district attorney.
Other municipalities contract with private firms and non-profit agencies to take on a number of indigent defense cases. New York City, for example, has standing contracts with both the Legal Aid Society and organizations like the Bronx Defenders. Many municipalities in New York State, including New York City, also maintain an Assigned Counsel program, where individual private attorneys take on indigent defense cases on a per diem basis.
CUNY Law Professor Nicole Smith Futrell said that the job of a public defender has continued to evolve since the Gideon case. Not only do attorneys defending indigent defendants manage a legal case; they also have begun to help their clients with social services and immigration offices in connection to their criminal court cases.
“Increasingly, I think the job of a public defender involves helping people navigate those systems,” said Futrell, a former Bronx Defender attorney who now sits on the organization’s board of directors.
Despite the expansion of public defense both before and after Gideon, advocates say there are still areas of the legal field where they see similar problems.
The American Immigration Council noted in 2016 that undocumented immigrants facing immigration court were not extended the right to counsel under the Sixth Amendment, because the government classifies immigration offenses as “civil” offenses rather than “criminal” offenses.
That same year, the New York Immigrant Family Unity Project was launched by the Vera Institute of Justice. The Project brings together attorneys from organizations like the Defenders and Legal Aid to provide no-cost defense services to defendants in immigration court. Last year, amid the Trump administration’s push for “law-and-order” concerning immigration law, the New York City Council voted to fully fund the Project.
“New York is really ahead of the curve,” said Futrell.
While a positive development for protecting individual rights, that funding will only stay in place as long as the City Council votes for it; and the impact of United States’ immigration policy stretches far beyond New York City. As the stories of Powell, Betts, and Gideon show, however, the precedent as it stands today is not necessarily the precedent that stands forever.