The Gideon v. Wainwright decision
 

As with the Zenger trial centuries earlier, the fate of one uncelebrated citizen changed American law

Until Clarence Earl Gideon mailed his envelope to the United Sates Supreme Court, there was nothing about him to suggest that he would become a celebrated symbol of fairness in American justice. As the year 1962 began, Gideon sat in a Florida prison, scribbling an appeal to the Supreme Court. He had been given a five-year prison sentence for the crime of breaking and entering into a poolroom in Panama City, Florida. (In the United States, most criminal matters fall under state jurisdiction.) By all appearances, he was one of life's chronic losers, a boozy 51-year-old semi-educated petty criminal who had spent a substantial portion of his life behind bars.

But Gideon was the beneficiary of two factors that were destined to transform him into an iconic figure in American law.

First, he had a passionate belief that his conviction was unconstitutional because he had been tried without a lawyer. Second, the tide of constitutional history in the United States was on his side.

When Gideon had been brought to trial he insisted that he, a poor man, was constitutionally entitled to have a lawyer appointed to defend his case. The trial judge explained that under Florida law only defendants in capital cases (cases that could result in the death penalty) were entitled to have lawyers appointed to defend them.

Gideon stubbornly insisted: “The United States Supreme Court says I am entitled to be represented by counsel.”

The Judge said no and ordered Gideon to represent himself. Gideon did so, badly, and was convicted and sentenced to the maximum, five years.

So when Clarence Gideon later mailed his hand-written appeal to the U. S. Supreme Court, he had created an unambiguous record that he had demanded his right to be represented by a lawyer, and his demand had been denied. His problem was, he was wrong – the Supreme Court had never ruled that a defendant in a state trial always has a right to be represented by a lawyer. But what Clarence Earl Gideon could never have imagined was that powerful forces were in play that would eventually persuade the Supreme Court to see things Gideon's way.

Extending the Bill of Rights to State Courts
Americans' constitutional rights are so vigorously enforced these days that it is easy to forget that until the second half of the 20th century, the Bill of Rights was virtually ignored in the nation's state courts, where most crimes were prosecuted. The reason was that the framers of the first 10 amendments to the Constitution, known as the Bill of Rights, had made a mistaken assumption as to where the greatest threat to their liberties lay. These 18th-century Americans had assumed that, if a tyrannical government were to threaten their rights, it would be the newly created federal government, running roughshod over the rights of the people of the states. They felt that the state governments, so close to the people, would never abuse the citizens so close at hand.

Thus, the Bill of Rights contained no language protecting the peoples' rights against abusive state and local officials. The First Amendment began: "Congress shall pass no law ..." and then it and the other amendments to the U.S. Constitution proceeded to list the rights that the federal government must respect. The list began with free speech, free press, and freedom of religion, included a ban on unreasonable searches by police, a ban on compelled testimony in court, and other safeguards, and (in the Sixth Amendment) the Bill of Rights guaranteed each person accused of a federal crime "the assistance of counsel for his defense." So Clarence Earl Gideon did, indeed, have a constitutional right to a lawyer – if he had been tried in federal court. Fortunately for him, a feeling had been growing in the United States that these same constitutional rights should be binding on the states.

When the framers of the Bill of Rights assumed that the states would not mistreat the citizens close at hand, they were only half wrong. Most average citizens were treated fairly by state and local officials. But too often society's underdogs – the poor, the uneducated, nonwhites – were not. As the years and decades passed, the feeling grew in the United States, and particularly among some members of the Supreme Court, that the political process in some of the states was failing to protect the rights of all the people – and that if those rights were to be protected, the Supreme Court would have to do it by requiring state and local officials to abide by the Bill of Rights.

But how could the Supreme Court justify this extension, since the Bill of Rights by its terms limited only the federal government? The answer was found in the Fourteenth Amendment to the Constitution, which had been enacted after the Civil War as a way to protect the newly freed slaves from discriminatory southern officials. The Fourteenth Amendment – unlike the Bill of Rights – was specifically aimed at the states. It declared that they could not deprive any person of life, liberty, or property without "due process of law" or deny any person "the equal protection of the laws." These were ambiguous constitutional rights that were difficult to apply to any individual case, but if the due process guarantee in the Fourteenth Amendment could be construed to require the states to obey the specific protections of the Bill of Rights, the result would, experts knew, be a revolutionary expansion of Americans' constitutional rights.

Thus some justices of the Supreme Court began to argue that if any of the guarantees contained in the Bill of Rights could be shown to be fundamental to the concept of a just society, then those provisions of the Bill of Rights would be "absorbed" into the due process guarantee of the Fourteenth Amendment and made enforceable against the states. Was the Sixth Amendment's guarantee of the right to counsel so fundamental and essential to a fair trial that it should be binding on the states in all cases? Clarence Earl Gideon had unknowingly brought this question before the Supreme Court.

Gideon's Appeal and the Civil Rights Movement
When the Supreme Court announced in June of 1962 that it would hear Gideon's case in order to consider if the Sixth Amendment's right to counsel was binding on the states, Gideon's cause faced a daunting handicap. Twenty-one years earlier the Supreme Court had considered that same issue in another case, and had decided against the position urged by Gideon. The Supreme Court has been known to overturn its own past decisions, but not often. In Gideon's case, the justices could not even demonstrate that conditions had changed since the earlier decision. If the Court was going to rule for Gideon, it would have to swallow the bitter pill of admitting that in its earlier decision it had simply been wrong.

But on a more subtle level, Gideon's cause had much going for it. There was a broad feeling in the country in the 1960s, a high point of modern liberalism, that state and local officials too often ran roughshod over the rights of minorities and the poor, and that the legislatures in the offending states seemed unlikely to do much about it – at least, in the absence of pressure from the Supreme Court. The underlying issue was mistreatment of blacks in southern states in the form of legal segregation, violence, and denial of voting rights. Though enfranchised after the Civil War, they were systematically discriminated against. In the aftermath of World War II, newspapers and the new technology of television brought these grim vestiges of slavery to the attention of the American public as a whole.

The Supreme Court had begun the process of applying pressure on southern states in a string of desegregation decisions. In general, public opinion seemed to favor this liberal activism by the Supreme Court – or at least to tolerate it as a necessary overstepping of traditional judicial bounds. So by the early 1960s the Supreme Court was poised to go forward, in a case-by-case process, to decide which of the Bill of Rights' safeguards were so "fundamental" that they were binding on the states. The result has been called a "due process revolution."

When the Supreme Court announced that it had granted the appeal of an obscure Florida convict to decide if all states must provide lawyers for the accused, Clarence Gideon immediately became the subject of great public interest. There was something romantic about the poorly educated inmate, scribbling with a pencil a legal petition that brought to the Supreme Court a question of basic fairness in American law. Gideon's appeal also put a human face on the abstract debate over American justice. To have brought Gideon without a lawyer to trial for his freedom, pitted against an experienced lawyer for the prosecution, was so stark and dramatic that it struck the average American as unfair.

In a subtle manner, Gideon also came to be associated with the movement for greater civil rights for American blacks. Gideon was a white man. But he had lived his life at the bottom of the social and economic ladder, as many nonwhites had, and he had suffered in court because of his poverty. Many blacks felt that they had been disadvantaged in court (and outside it) for the same reasons, so they felt that Gideon's cause was also theirs. The Supreme Court appointed famed Washington lawyer (and later a justice of the Court) Abe Fortas to represent Gideon in his Supreme Court case. Fortas considered the Supreme Court's refinement of the criminal law and its expansion of civil rights as a related process, part of an overall effort by society to civilize itself. "I believe," he said, "that if you think of the developments in the racial field, you will see a parallel which similarly, in my opinion, indicates that in the past generation, we as a people have been moving forward towards a better, a greater, and a nobler conception of the rights of man, and I think Gideon is part of that movement."

So the stakes were high on March 18, l963, when the Supreme Court announced its decision in the Gideon case. Without a dissent, the Court ruled that the Sixth Amendment's right to counsel is binding on the states. "In our adversary system of criminal justice," the Court's opinion said, "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." The justices overturned Gideon's conviction. Immediately, the nation understood that the decision reached far beyond justice for Gideon. It meant that the Supreme Court had embarked on a process that would strengthen the constitutional protections of rich and poor alike. (Meanwhile, Gideon gained his own measure of justice. He was brought to trial again by the state of Florida, this time represented by a local lawyer appointed by the court. The jury found Gideon not guilty.)

The Debate Over the Constitution as "Living Document"
The Gideon decision by the Supreme Court raised a series of immediate questions. Among them: How could the states afford to supply lawyers to all indigent defendants? If poor suspects were entitled to lawyers during their interrogations, wouldn't the lawyers tell them to remain silent and undermine the efforts of the police? What would be the impact of setting free all the prisoners who had been convicted without the assistance of lawyers?

But far more important were broader issues that the Gideon decision had raised. If the Sixth Amendment's right to counsel was so fundamental that the states had to obey it, clearly the Supreme Court would say other provisions of the Bill of Rights were also binding on the states. Indeed, by the end of the 1960s the Court had issued a series of decisions, requiring the states to obey most of the remaining safeguards of the Bill of Rights. The list of these safeguards imposed upon the states is as follows: the prohibition against unreasonable searches (Fourth Amendment); against "double jeopardy" – that is, being tried again if acquitted the first time – against compelled testimony against oneself (Fifth Amendment); the right of each defendant to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor (Sixth Amendment); and the prohibition against cruel and unusual punishments (Eighth Amendment).

Unfortunately for the Supreme Court, these decisions were issued during a time of rapidly growing violent crime and civil unrest in the United States. Critics of the Court blamed this on the justices, and Richard Nixon repeatedly chided the Court in his successful campaign for president in 1968. Other politicians have done so as well. However, presidents influence federal court decisions for the most part through judicial appointments, which may arise infrequently.

In addition, on a theoretical level, the due process revolution had left a lingering question that remains unresolved into the 21st century. The American system of government is based on a written constitution, which is interpreted by the Supreme Court. If the Supreme Court has been faithful in interpreting the Constitution down through the years, how could it suddenly discover, in the mid-20th century, a vast body of new law enhancing the rights of minorities and criminal defendants? As the dean of the Harvard Law School, Erwin N. Griswold, wryly put it in 1965, "Some things have recently been found in the Federal Constitution that were not previously known to be there."

Defenders of the Court argue that the Constitution is a "living document," which would become obsolete if the justices did not interpret it in a way to keep it relevant to the issues of changing times. Their most persuasive case in point has been Brown v. Board of Education, the 1954 decision that declared school segregation unconstitutional. To reach that outcome, the Court had to overrule a half-century of decisions that said separate but equal facilities for blacks satisfied the Constitution. How, the Court's defenders asked, could the Court not rule in the increasingly tolerant and cosmopolitan mid-20th century, that state-enforced racial segregation violated the Constitution?

But critics of the "living document" approach argue that this is an invitation to activist judges to write their own notions of desirable social policy into the Constitution. The critics often cite, as an example of this, the Supreme Court's decision in Roe v. Wade, the 1973 decision that established a constitutional right for women to obtain abortions. The Court's opinion held that laws forbidding abortions violated the privacy rights of women and their physicians to make decisions involving abortions without interference from the state. The critics point out that the Constitution and the Bill of Rights say nothing about privacy rights, and they allege that the justices concocted an implied right of privacy in order to arrive at a result they considered desirable.

This constitutional debate has evolved into a heated political struggle. Liberals, for the most part, favor the "living Constitution" approach, while conservatives argue that judges should leave lawmaking to the legislatures. One result has been an ongoing political dispute over the appointment and confirmation of judges – particularly nominees to sit on the Supreme Court – a dispute that shows no sign of ending.

After his acquittal, Clarence Earl Gideon drifted from one Florida tavern to the next until January 18, 1972, when he died at the age of 6l. That same year, the Supreme Court expanded its ruling in his case to require counsel for any defendant who, if convicted, might spend even one day in jail.

Gideon was initially buried in an unmarked grave. Donors later provided a headstone with this inscription:

"Each era finds an improvement in law for the benefit of mankind."