The United States Supreme Court (Mostly) Gives Up Its Review Role with Ineffective Assistance of Counsel Cases

Minnesota Law Review, Vol. 100, 2016

William & Mary Law School Research Paper No. 09-353

25 Pages Posted: 28 Mar 2017

Date Written: March 23, 2017


On the fiftieth anniversary of Gideon v. Wainwright, just a few years ago, both legal and lay commentators wrote and spoke glowingly of this “landmark case, guaranteeing the right to counsel in criminal cases, [which] forever changed America’s criminal justice system.” “Gideon, like several other of the landmark cases . . . seemed to offer a promise to all people in the American criminal justice system. In this case it was supposed to be complete equality before the law, even if one could not afford counsel.” Congressman John Conyers said this about Gideon: “Fair trials, wherein everyone — no matter their ability to pay — is equal before the law through the right to counsel, is at the core of our country’s judicial system. The Supreme Court made history in recognizing this fundamental right, and extending it to defendants at the state level.” As then Attorney General Robert Kennedy said: If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court, and if the Court had not taken the trouble to look for merit in that one crude petition . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case . . . and the whole course of American legal history has been changed.

To be sure, I would go even a step beyond this celebratory language and note that the Gideon decision remains the single most significant criminal justice decision ever written by an American court. More important than the death penalty cases, Miranda v. Arizona, or even the exclusionary rule holdings. The reason can be stated plainly: prior to Gideon, many criminal defendants were not represented by lawyers even in serious criminal cases. It is, certainly, difficult to give precise empirical support for this conclusion more than fifty years after the fact.

Still, with but a few observations, the statement seems more than reasonable. The vast majority of criminal cases are resolved in state courts, not in the federal system. Also, the vast majority of criminal defendants are indigent, unable to pay for their own lawyers.

Keywords: Ineffective assistance of counsel

Suggested Citation

Marcus, Paul, The United States Supreme Court (Mostly) Gives Up Its Review Role with Ineffective Assistance of Counsel Cases (March 23, 2017). Minnesota Law Review, Vol. 100, 2016, William & Mary Law School Research Paper No. 09-353, Available at SSRN:

Paul Marcus (Contact Author)

William & Mary Law School ( email )

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