Title: Fulfilling the Unfulfilled Promise of Gideon: Litigation as a Viable Strategic Tool
Abstract: INTRODUCTIONNearly fifty years after the landmark case of Gideon v. Wainwright,1 representation of indigent criminal defendants in many instances has remained inadequate. Commentators proffered various reasons for the deficiencies, including inadequate funding, excessive caseloads, inconsistent standards, and judges involved in the selection of indigent defense counsel. Numerous legal scholars, committees, and commissions suggested reforms. This Essay focuses on the use of litigation to secure the promise of Gideon. It discusses the effect various lawsuits had on systemic reform and provides a recent case study from Michigan of a lawsuit that served as a catalyst for legislative change. Finally, this Essay suggests future approaches to achieve systemic reform.I. THE RIGHT TO ASSISTANCE OF COUNSELThe Sixth Amendment of the United States Constitution guarantees that a person accused of a crime shall have the Assistance of Counsel for his defence.2 The Gideon Court incorporated the Sixth Amendment guarantee of counsel for all individuals charged with a felony and unable to afford counsel into Fourteenth Amendment due process, thereby requiring states, and not just the federal government, to appoint counsel to indigent criminal defendants.3 The idea was not particularly shocking or revolutionary. At that time, only a few states did not appoint counsel for all defendants accused of a felony.4 Since Gideon, the more important issue has been defining the quality of representation needed to satisfy the right to counsel and determining how to achieve such representation.A. THE MANDATE OF GIDEON V. WAINWRIGHT: WHAT IS REQUIRED?Although the Gideon Court did not give any guidance on what it would consider adequate representation, some federal courts had already developed a low standard.5 Later, in Strickland v. Washington, the Supreme Court articulated a two-part test for ineffective assistance: first, the defendant must show that counsel acted outside the range of professional competence and second, that counsel's errors were prejudicial.6 The Supreme Court also has stated that to be adequate, counsel must be capable of putting the prosecution's case to the crucible of meaningful adversarial testing.7B. STATE CONSTITUTIONAL GUARANTEESA majority of states, and those containing over ninety percent of the U.S. population, had an implicit or explicit guarantee of the right to counsel in their state constitutions when Congress ratified the Fourteenth Amendment in 1868.8 Twelve state constitutions included the explicit right to seventeen states guaranteed the right to be heard by and counsel; and an additional five states had a somewhat more ambiguous right to be heard by self and counsel.9 The majority of state constitutions currently provide for a right to counsel.10 Additionally, nearly half the states constitutional provisions that allow parties to present state constitutional claims directly to the state supreme court.11 State supreme court decisions which are grounded on the analyses of state constitutional provisions are unreviewable by federal courts, as long as they meet the minimum standards of the federal Constitution.12C. CONSTITUTIONAL RIGHT TO COUNSEL BASED ON EQUAL PROTECTION AND DUE PROCESSPrior to Gideon, the Supreme Court had relied upon due process and equal protection principles as a basis to prevent discriminatory procedures in criminal trials.13 The Court explicitly recognized a due process right to effective assistance of counsel in Powell v. Alabama.14 Although most courts abandoned a due process analysis in favor of a Sixth Amendment analysis, equal protection and due process arguments still force. At a minimum, defendants a right to effective assistance in any proceeding where there is a right to counsel, whether based on due process or the Sixth Amendment.15D. EXTENSION OF THE CONSTITUTIONAL RIGHT TO COUNSELIn the years after Gideon, the Supreme Court extended the right to counsel. …
Publication Year: 2014
Publication Date: 2014-07-01
Language: en
Type: article
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Cited By Count: 1
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