The Invisible Pillar of Gideon

Abstract

In the four decades since Gideon v. Wainwright, the Supreme Court has decided dozens of cases that have defined the scope of indigent defendants' right to appointed counsel. Despite this rich history, the Court has never addressed the crucial question of what it actually means to be indigent. In other words, while it is now axiomatic that the poor are entitled to a free lawyer, there is virtually no authority specifying how poor a defendant must in fact be to qualify for appointed counsel.

In addition to hypothesizing why the Supreme Court has never defined indigency and reviewing the inadequate definitions adopted by many states, this article argues for a constitutional minimum definition of indigency to protect the integrity of Gideon. The article considers the different methods and institutions for adopting such a constitutional floor and advocates an indigency definition that is based upon the standards used in federal poverty entitlement programs.

Keywords: indigence, indigent, appointed counsel, Gideon, constitutional floor