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Gideon @ 50: The Right to Counsel and the “Noble Ideal” of Equal Justice


By MICHAEL TOBIN, Deputy State Public Defender

The historic U.S. Supreme Court decision in Gideon v. Wainwright was a major step towards fairness and equality in our criminal justice system.  This year’s 50th anniversary of the decision gives us reason to reflect on the effect of the decision.

Clarence Earl Gideon filed a handwritten petition challenging his conviction because the State of Florida had denied him the right to counsel.  Neither the underlying criminal charge (breaking and entering) nor his sentence (five years imprisonment) would ordinarily have been of major interest beyond the parties directly involved.  However, by the time the case was argued on January 15, 1963, Gideon v. Wainwright had sparked national attention because of the potential that the case would result in the appointment of counsel for poor defendants across the nation.

Gideon was represented by attorney Abe Fortas, who had been appointed by the U.S. Supreme Court.   The American Civil Liberties Union (ACLU), with leave of the Court, also joined in Gideon’s argument that defendants in state criminal cases had a constitutional right to appointment of counsel.  The Florida Attorney General represented the respondent (Corrections Director Wainwright), and the attorneys general of Alabama and North Carolina sided with Florida.  Their counterparts in 22 states, however, supported Gideon.  The number of states advocating for the right to counsel is an impressive aspect of the Gideon case.

The Court noted that in our adversary system, “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.[1]  In ruling unanimously for Gideon, the Court recognized that our justice system requires not only this prosecutorial machinery, but also competent defense counsel to help the defendant understand the legal process, prepare the case, and advocate on his or her behalf.

Fair trials and equal justice require that regardless of financial status, defendants must have “the guiding hand of counsel at every step of the proceedings.”[2]  Justice Black wrote for the Court that the “noble ideal” of every person standing on equal footing before the court “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”[3]

Clarence Gideon

Clarence Gideon

As we recognize the 50th anniversary of Gideon v. Wainwright, we should also realize that landmark cases are not necessarily self-executing. They establish broad principles that must be interpreted and implemented in a world of diverse viewpoints and limited resources.  Gideon’s “noble ideal” is the principle of equal justice for all persons charged with crimes.  Implementation of this principle, however, has been and remains a challenge.

The right to counsel is susceptible to court decisions[4] and to systemic challenges such as excessive caseloads, inadequate compensation, and practices that encourage defendants to waive the right to counsel.[5]  Our best efforts are essential, in the policy arena and in the courthouse, to help us “achieve a fair system of justice,”[6] as envisioned by the Court 50 years ago.

Fifty years after Gideon, Wisconsin continues the state’s historical commitment to the right to counsel.  Although no jurisdiction is immune to the practical difficulties in making indigent defense a funding priority, the Wisconsin State Public Defender (SPD) is generally recognized as a model program for client-centered representation, mixed system of staff and private bar, comprehensive and innovative training programs, prompt appointment of counsel, and leadership in statewide and county justice initiatives.

Two items in the Governor’s pending budget bill are important next steps in strengthening the right recognized in Gideon.  Pay progression for public defenders is essential to maintain parity with prosecutors’ salaries[7] and to provide both defenders and prosecutors with the ability to pursue careers in these professions.  Increased funding for private attorneys is critical to fix a biennial shortfall that has left attorneys unpaid for several months.  Other initiatives remain to be addressed, most notably an increase in the SPD pay for the private bar.  However, these two budget items, if enacted, will promote equal justice in Wisconsin.

While we honor the Gideon opinion announced 50 years ago in Washington, D.C., we should also recall what occurred five months later in Panama City, Florida.  After his conviction was reversed because he was deprived of the assistance of an attorney, Clarence Gideon again stood trial for allegedly breaking into the Bay Harbor Poolroom.  With the assistance of an attorney, he was acquitted.[8]

[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The Court also noted that defendants with sufficient funds find it necessary to hire attorneys.  Id.

[2] Gideon, 372 U.S. at 345.

[3] Gideon, 372 U.S. at 344.

[4] See Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (holding that the right to counsel does not apply unless the defendant receives a sentence of imprisonment).  Wisconsin previously adopted a broader interpretation of the right to counsel in Winnie v. Harris, 75 Wis. 2d 547, 556 (1977).

[5] See generally Steven Bright & Sia Sanneh, Fifty years of Defiance and Resistance After Gideon v. Wainwright, 122 Yale Law Journal ___ (2013).

[6] Gideon, 372 U.S. at 344.

[7] See ABA Ten Principles of a Public Defense Delivery System, Principle 8 (American Bar Association 2002) (recognizing the importance of parity of resources between the defense and prosecution functions).

[8] Between the Supreme Court decision and the retrial, Gideon filed his own pretrial motions and denied the offers of two other attorneys to assist him.  His court-appointed attorney spent three full days preparing for trial and successfully impeached the prosecution’s main witness.  See Anthony Lewis, Gideon’s Trumpet, pp. 234-250 (Vintage Books 1964).


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