racial biases that had tainted the trial. Nevertheless, it planted the seed of a constitutional right to appointed counsel (albeit a small and limited one) that would flower in coming decades.
Even Powell itself is not an unmitigated triumph. The Supreme Court overturned the Scottsboro verdicts one more time in 1935 in Patterson v. Alabama and Norris v. Alabama, because Alabama systematically excluded blacks from those juries. But Alabama kept retrying the cases, and eventually the Supreme Court let convictions in five different cases stand.9
Beyond Capital Cases: From Betts to Gideon
Not long after Powell, the Court clarified that federal criminal defendants had a right to appointed counsel, as did capital (that is, death-penalty) defendants in state court. Criminal cases are full of “intricate, complex, and mysterious” legal rules and prosecuted “by experienced and learned counsel,” so federal defendants needed lawyers to level the playing field. For three decades, however, the Court refused to extend this right to state criminal trials. In Betts v. Brady, the Court held that a poor defendant has no fundamental right to appointed counsel in all cases. Where there are special circumstances that make a defendant unable to try his own case, states may have to appoint counsel on occasion to satisfy due process of law. But Betts was a mature man of ordinary intelligence with past experience in criminal justice, and he chose a bench (non-jury) trial, which made the procedures more informal and flexible. He had no special need for a lawyer to navigate the procedures.10
In later decades, the Court proved increasingly willing to find special circumstances requiring appointed counsel even in routine cases. Reviewing matters case by case in hindsight, the Court could not provide clear guidance to lower courts and legislatures on which cases needed counsel. As Justice Harlan eventually put it, “[t]he Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial.” Thus, in 1963 the Court overruled Betts in Gideon v. Wainwright.11
Clarence Gideon was a sometime drifter, gambler, and small-time thief. In 1961, someone broke into a pool hall in Panama City, Florida, and stole coins from the cigarette machine and juke box, as well as some beer and wine. Witness Henry Cook identified Gideon as the burglar, though Cook had a criminal record and may have committed the crime himself. A police officer arrested Gideon with pockets full of change, which he later testified he had won by gambling. Gideon’s request for appointed counsel was denied, and he was convicted of breaking and entering with intent to commit a misdemeanor.
The Supreme Court unanimously reversed Gideon’s conviction, overruling the special-circumstances requirement to trigger appointment of counsel. Writing for the Court, Justice Black stressed that the Sixth Amendment’s right to appointed counsel is fundamental, so states must follow it to ensure due process of law. “[I]n our adversary system of criminal justice,” poor criminal defendants need appointed counsel to ensure fair trials. “Governments . . . quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” and defendants who can afford it hire “the best lawyers they can get.” Thus, for both the prosecution and the defense, “lawyers in criminal courts are necessities, not luxuries.” Tellingly, when Gideon was tried a second time, his appointed defense lawyer caught the prosecution’s key witness (Cook) in a lie about his criminal record, and the jury quickly acquitted Gideon.
Gideon was rightly hailed as a triumph for justice, a heroic decision vindicating the little guy and ensuring justice for the poor. Anthony Lewis immortalized the case in his stories for the New York Times and his prize-winning book Gideon’s Trumpet, and Henry Fonda later played Clarence Gideon in a movie made for prime-time TV. But one OF the most striking facts about Gideon is that the Court largely followed developments in the states, reining in a few Southern outliers, rather than leading them. By the 1960s, all but five states routinely appointed counsel for poor felony defendants. Almost two dozen states filed an amicus (friend-of-the-Court) brief supporting Gideon (!), led by Minnesota Attorney General and future Vice President Walter Mondale, while only two other states supported Florida. The very end of Justice Black’s opinion cited the former brief, implicitly confirming that Gideon’s rule had proven workable in the states. Gideon, in short, was a right on which almost everyone could agree.
Stretching Gideon to Minor Cases
Gideon left open a plethora of questions, including how serious a crime must be to qualify for appointed counsel, how well an appointed counsel must perform, and what compensation and resources he must have. On the first of these questions, the Court soon extended Gideon beyond felony cases to misdemeanors, in Argersinger v. Hamlin. The Florida Supreme Court held that the constitutional right to appointed counsel extends only as far as the right to a jury trial, that is, to crimes punishable by more than six months’ imprisonment. But the U.S. Supreme Court reversed Jon Argersinger’s concealed-weapon conviction and ninety-day jail sentence, extending the right to counsel to all cases in which a court imposes any actual imprisonment. The Court argued that even low-stakes cases may be too complex for laymen to handle themselves, and even brief imprisonment can harm defendants’ liberty, careers, and reputations. The Court also worried about “assembly line justice,” and hoped that appointing lawyers for misdemeanants would give defendants a chance to examine and fight all criminal charges. The majority dismissed concerns about cost, asserting that only a couple of thousand lawyers, about half of one percent of all lawyers, would be needed to handle all non-traffic misdemeanors in the United States. In his separate concurring opinion, however, Justice Powell worried that the right would cost and demand much more, exacerbating court congestion and delay.12
Argersinger is dubious for several reasons. First, Argersinger is far more radical than Gideon. Gideon merely codified a right that was already working in a majority of states. But Argersinger swept far more broadly, creating a new right that was broader than most states’ practices at the time. Given the novelty and breadth of the right, it is unsurprising that the majority’s predictions proved to be far too sanguine. Second, the Court relied upon the American Bar Association’s recommendations, but of course the ABA’S members are the ones who benefit from the Court’s full-employment mandate. Third, the right to a jury trial is expressly guaranteed twice in the Constitution, and the Founding Fathers made it central to the Bill of Rights. Yet the Court treated its novel right to counsel as more fundamental than the venerable right to a jury, stretching it much further.
The Court, in Alabama v. Shelton, extended Argersinger to suspended sentences that later result in imprisonment. But in Scott v. Illinois it drew the line at cases imposing imprisonment, not just fines, heeding earlier warnings about cost. Broadening the right to fine-only misdemeanors, it worried, “would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.”13
The bottom line? The very limited right first announced in Powell had grown broad indeed: All criminal defendants facing even a day of jail time, plus defendants with suspended sentences that later result in jail time, plus juvenile defendants facing imprisonment, get a free government lawyer if they cannot afford to hire one. Misdemeanors that result only in fines do not require a lawyer.
Minimal Performance Standards
Collectively, Gideon, Argersinger, and Shelton extended the right well beyond capital cases or felonies to millions of misdemeanors, making its reach quite broad. But the Court refused to make it deep. It has imposed only the most minimal standards for how well appointed counsel must perform and what pay, support, and resources they must have in order to assist their clients effectively.
Even though the Scottsboro Boys had lawyers, the circumstances prevented their lawyers from giving “effective aid” in preparing and trying the cases, making their trials fundamentally
