Fifty Years of Defiance and Resistance after Gideon v. Wainwright

Abstract

In its 1963 ruling Gideon v. Wainwright, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the law.” In later decisions, the Court ruled that a poor person facing any loss of liberty must have a lawyer “so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.” This Essay argues that fifty years later, this right has not been realized. The U.S. criminal system is not truly adversarial because prosecutors possess broad, unchecked power and therefore determine results in criminal cases with little or no input from the defense. Governments have failed to adequately fund defense systems, many judges tolerate or welcome inadequate representation, and the Supreme Court has refused to require competent representation, instead adopting a standard of “effective counsel” that hides and perpetuates deficient representation. In this system, poverty, not justice, dictates outcomes.