On the 50th Anniversary of Gideon, Part I: Why Provide the Assistance of Counsel to the Accused at State Expense?

Posted: March 18, 2013 in Criminal Law, Uncategorized
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March 18 marks the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright.  The Gideon case requires that if person charged with a felony wants the assistance of a lawyer but cannot afford one, the state must provide a lawyer at no charge.  The Court based its decision on the Sixth Amendment‘s guarantee of the right to the assistance of counsel.  When facing felony criminal charges that could result in prison, the Court said, lawyers were “necessities, not luxuries.”

In a decision nine years later, the Court extended the right to counsel to misdemeanor cases in which the trial judge might send the accused to jail.  But the right to counsel remains limited to criminal cases; while many jurisdictions have created organizations that provide lawyers  in civil cases (divorces, child custody cases, etc.) for people who cannot afford to pay, the  state is under is no constitutional obligation to do so.

There has been a lot said in the run-up to this 50th anniversary about how well the promise of Gideon has actually been carried out around the country.  I’m going to post about some of those issues later this week.   I want to begin with a more basic question, which I discussed in an interview on public radio a few days back: why should the state have to pay for lawyers for indigent defendants?  There are three important points to make.

First, we don’t supply counsel because of poverty.  We may or may not believe that there is a moral obligation to help the poor with basic needs, but our Constitution does not require that the state do this.  As Justice Harlan once said in another case, the Constitution does not include a philosophy of leveling.  The bottom line is that this shouldn’t be thought of as an act of charity.

Second, we handle cases in this country in an adversary system of justice.  Unlike other countries, evidence in our system is presented by both sides.  Each side works at exposing the weaknesses of the other through cross-examination and presentation of competing evidence.  The essence of such a system is the ability to challenge the other side’s evidence effectively.  If the accused has no lawyer, he or she will be unable to mount an effective challenge.  This would destroy the balance in the whole system.  This isn’t a matter of giving the defendant a “sporting chance,” or having an equal shot at winning.  Rather, in a process initiated by the state, the purpose of which is to punish the defendant and take away his or her freedom, it is fundamentally unfair to have one side of the adversary process at such a basic disadvantage.

Third, we don’t provide counsel to the accused because he or she deserves it; we don’t do it for them.  We do it, instead, for us.  Our values, enshrined in the Constitution, require that before the state can strip a person of property, liberty, or life, we must accord that person due process of law and a fair trial.

This may seem ironic, since many people accused of crime seem to have no regard for the law.  But that isn’t the point.  We don’t do it for them.  We do it because of who we are and what we value.  We do it for us.

  1. […] a post here last week about the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. […]

  2. You are right, Pajama Lady. The focus of this post was on why we have indigent defense. The next post will be on *how* we do it. And while there are some very good public defenders out there, the overall answer is “we don’t do it very well,” for many reasons, including the one you give here. Watch for the next post!

  3. Helen Pajama says:

    Professor you are knowledgable and insightful, and I agree. But some of the lawyers are inefficient
    and do not have the money that the DA’s have at their disposal. This leaves an indigent a snowballs
    chance in hell at winning a case. And at times, causes a man to be killed by the state. Pajama Lady

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