Keeping Gideon's Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases

43 Pages Posted: 31 Mar 2017 Last revised: 29 Jun 2017

See all articles by Brandon Buskey

Brandon Buskey


Lauren Sudeall

Vanderbilt University - Vanderbilt Law School

Date Written: April 1, 2017


The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants.

This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts. Viewed in that light, indigent misdemeanor defendants denied counsel may not suffer from a Sixth Amendment violation under the law as it stands, but they are deprived of meaningful access to the courts on the basis of wealth. It suggests that reconceputalizing the plight of misdemeanor defendants through the lens of due process and equal protection may help to identify the most effective judicial and legislative solutions to the crisis of “assembly line justice.”

Keywords: Sixth Amendment, Misdemeanors, Criminal Procedure, Right to Counsel, Equal Protection, Access to Courts, Fourteenth Amendment, Due Process

Suggested Citation

Buskey, Brandon and Sudeall, Lauren, Keeping Gideon's Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases (April 1, 2017). 85 Fordham Law Review 2299 (2017), Georgia State University College of Law, Legal Studies Research Paper No. 2017-09, Available at SSRN:

Brandon Buskey

ACLU ( email )

125 Broad Street
New York, NY 10004
United States

Lauren Sudeall (Contact Author)

Vanderbilt University - Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States

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