The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” In addition, the Fourteenth Amendment declares that no state shall deprive any person of “life, liberty, or property without due process of law.” What is included in “due process of law”? Is the Sixth Amendment right to an attorney? If so, is it the right to get one for yourself or to have one appointed to you by a court if you cannot afford one? In Powell v. Alabama (1932), the Supreme Court declared that “due process” was violated when a state trial judge in Alabama failed to inform nine defendants in a racially charged rape trial (the “Scottsboro Boys”) that they had the right to retain counsel and that, given that they faced the death penalty if convicted, they also had the right to court-appointed counsel. Ten years later, the Court held by a 6-3 vote in Betts v. Brady (1942) that “due process” did not include the right to have a lawyer appointed by a court unless there were “special circumstances” like those in Powell v. Alabama.
Justice Hugo Black was one of the three dissenters in Betts v. Brady (including Justice William O. Douglas), but twenty-one years later he wrote the Opinion of the Court in Gideon v. Wainwright overruling Betts. Justice Black had long believed in “total incorporation”—the idea that the Fourteenth Amendment fully applies all the rights in the Bill of Rights against the states (including the Sixth Amendment right to counsel in all cases). Despite Black’s efforts, the Court has never officially adopted this view; instead, it has declared in cases like Palko v. Connecticut (1937) that the Due Process Clause of the Fourteenth Amendment incorporates against the states those rights that are “implicit in the concept of ordered liberty” such that neither “justice nor liberty” could exist without them. Under this “selective incorporation,” some rights in the Bill of Rights—such as those in the Third and Seventh Amendments—continue to remain unincorporated against the states. Nevertheless, Gideon v. Wainwright established the precedent that all defendants in any criminal trial—whether local, state, or federal—have the right to an attorney, even if they cannot afford one.
Source: 372 U.S. 335; https://www.law.cornell.edu/supremecourt/text/372/335
Justice BLACK delivered the opinion of the Court, joined by Chief Justice WARREN and Justices CLARK, BRENNAN, STEWART, WHITE, and GOLDBERG.
[Clarence Gideon] was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, Gideon asked the court to appoint counsel for him, whereupon the following colloquy took place:
The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the charge contained in the Information filed in this case.” The jury returned a verdict of guilty, and [Gideon] was sentenced to serve five years in the state prison. Later, [he] filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights by the United States Government.” Treating the petition for habeas corpus as properly before it, the State Supreme Court . . . denied all relief. Since 1942, when Betts v. Brady was decided by a divided Court, the problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give this problem another review here, we granted certiorari. . . .
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” We have construed this to mean that, in federal courts, counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response, the Court stated that, while the Sixth Amendment laid down “no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.” In order to decide whether the Sixth Amendment’s guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered “[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date.” On the basis of this historical data, the Court concluded that “appointment of counsel is not a fundamental right, essential to a fair trial.” It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment’s guarantee of counsel for indigent federal defendants was “made obligatory upon the States by the Fourteenth Amendment.” Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was “a fundamental right, essential to a fair trial,” it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.
We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama (1932), a case upholding the right of counsel, where the Court held that . . . the Fourteenth Amendment “embraced” those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” even though they had been “specifically dealt with in another part of the federal Constitution.” In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and unusual punishment. On the other hand, this Court in Palko v. Connecticut (1937) refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that “immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states,” and that guarantees “in their origin . . . effective against the federal government alone” had, by prior cases, “been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption.”
. . . Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that “the right to the aid of counsel is of this fundamental character” (Powell v. Alabama ). While the Court, at the close of its Powell opinion, did, by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. . . .
. . . In light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that “one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State,” conceded that “[e]xpressions in the opinions of this court lend color to the argument . . . .” The fact is that, in deciding as it did—that “appointment of counsel is not a fundamental right essential to a fair trial”—the Court in Betts v. Brady made an abrupt break with its own well considered precedents. In returning to these old precedents, sounder, we believe, than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, 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. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. . . .
The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree.
The judgment is reversed, and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion.
Justice DOUGLAS, concurring.
While I join the opinion of the Court, a brief historical resume of the relation between the Bill of Rights and the first section of the Fourteenth Amendment seems pertinent. Since the adoption of that Amendment, ten Justices have felt that it protects from infringement by the States the privileges, protections, and safeguards granted by the Bill of Rights. . . .
My Brother HARLAN is of the view that a guarantee of the Bill of Rights that is made applicable to the States by reason of the Fourteenth Amendment is a lesser version of that same guarantee as applied to the Federal Government. . . . But that view has not prevailed, and rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees.
Justice HARLAN, concurring.
I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial than has been accorded. . . .
I cannot subscribe to the view that Betts v. Brady represented “an abrupt break with its own well considered precedents.” In 1932, in Powell v. Alabama, a capital case, this Court declared that, under the particular facts there presented—“the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility . . . and, above all, that they stood in deadly peril of their lives”—the state court had a duty to assign counsel for the trial as a necessary requisite of due process of law. It is evident that these limiting facts were not added to the opinion as an afterthought; they were repeatedly emphasized, and were clearly regarded as important to the result.
Thus, when this Court, a decade later, decided Betts v. Brady, it did no more than to admit of the possible existence of special circumstances in noncapital, as well as capital, trials, while at the same time insisting that such circumstances be shown in order to establish a denial of due process. The right to appointed counsel had been recognized as being considerably broader in federal prosecutions, . . . but to have imposed these requirements on the States would indeed have been “an abrupt break” with the almost immediate past. The declaration that the right to appointed counsel in state prosecutions, as established in Powell v. Alabama, was not limited to capital cases was, in truth, not a departure from, but an extension of, existing precedent. . . .
. . . In agreeing with the Court that the right to counsel in a case such as this should now be expressly recognized as a fundamental right embraced in the Fourteenth Amendment, I wish to make a further observation. When we hold a right or immunity, valid against the Federal Government, to be “implicit in the concept of ordered liberty” [Palko v. Connecticut] and thus valid against the States, I do not read our past decisions to suggest that, by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States. Any such concept would disregard the frequently wide disparity between the legitimate interests of the States and of the Federal Government, the divergent problems that they face, and the significantly different consequences of their actions. . . . In what is done today, I do not understand the Court to depart from the principles laid down in Palko v. Connecticut, or to embrace the concept that the Fourteenth Amendment “incorporates” the Sixth Amendment as such.
On these premises I join in the judgment of the Court.
- 1. A Latin word meaning “to be informed” or “we wish to be informed,” certiorari is an order of a higher court to review a lower court decision. “Certiorari” was the first word of such orders when they were written in Latin.
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