Lessons from Gideon

19 Pages Posted: 4 Jun 2013

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Date Written: May 31, 2013


Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding.

Providing adequate funding for counsel, whether in criminal or civil or immigration cases, will be problematic so long as it is a welfare program for the poor. The right to counsel will be meaningful only if there are enforcement mechanisms to ensure adequate funding and the provision of competent counsel.

Suggested Citation

Chemerinsky, Erwin, Lessons from Gideon (May 31, 2013). Yale Law Journal, Vol. 122, 2013, Forthcoming, UC Irvine School of Law Research Paper No. 2013-111, Available at SSRN: https://ssrn.com/abstract=2273874

Erwin Chemerinsky (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

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