Supreme Court Establishes Defendants’ Right to an Attorney Summary

  • Last updated on November 10, 2022

The Supreme Court’s decision in Gideon v. Wainwright held that the Sixth Amendment’s right-to-counsel provision required a lawyer to be provided free of charge to any defendant in a state criminal trial who could not afford an attorney.

Summary of Event

The evidence is convincing that the provision in the Sixth Amendment to the U.S. Constitution guaranteeing that “the accused . . . in all criminal prosecutions shall enjoy the right . . . to have the Assistance of Counsel for his defense” meant, at the time of its adoption, no more than the right of a defendant to employ an attorney. This provision was in advance of the practice in contemporary England, where the assistance of counsel was allowed only in misdemeanor, but not in felony, cases, except for treason. Congress required by statute, starting in 1790, that the federal courts appoint counsel at the defendant’s request in treason and other capital cases. Supreme Court, U.S.;rights of the accused Gideon v. Wainwright (1963) Sixth Amendment Civil liberties;United States Constitution, U.S.;Sixth Amendment [kw]Supreme Court Establishes Defendants’ Right to an Attorney (Mar. 18, 1963) [kw]Defendants’ Right to an Attorney, Supreme Court Establishes (Mar. 18, 1963) [kw]Right to an Attorney, Supreme Court Establishes Defendants’ (Mar. 18, 1963) [kw]Attorney, Supreme Court Establishes Defendants’ Right to an (Mar. 18, 1963) Supreme Court, U.S.;rights of the accused Gideon v. Wainwright (1963) Sixth Amendment Civil liberties;United States Constitution, U.S.;Sixth Amendment [g]North America;Mar. 18, 1963: Supreme Court Establishes Defendants’ Right to an Attorney[07570] [g]United States;Mar. 18, 1963: Supreme Court Establishes Defendants’ Right to an Attorney[07570] [c]Laws, acts, and legal history;Mar. 18, 1963: Supreme Court Establishes Defendants’ Right to an Attorney[07570] [c]Civil rights and liberties;Mar. 18, 1963: Supreme Court Establishes Defendants’ Right to an Attorney[07570] Warren, Earl Black, Hugo L. Fortas, Abe Gideon, Clarence Earl Roberts, Owen J. Sutherland, George

In state criminal prosecutions, practice varied from state to state. The United States Supreme Court would not define the meaning of the right-to-counsel clause even at the federal level until 1938. As for its application to the states, the generally accepted view before the Civil War—affirmed by Chief Justice John Marshall in Barron v. Baltimore (1833) Barron v. Baltimore (1833) —was that the first eight amendments applied only to the federal government and not to the states. The adoption of the Fourteenth Amendment Fourteenth Amendment Constitution, U.S.;Fourteenth Amendment reopened the question, but the Supreme Court balked at extending any of the provisions of the Bill of Rights to the states via the Fourteenth Amendment until 1925, when the Court ruled that states must protect the freedom of speech. A majority of the justices continued to resist extending the criminal law provisions of the Bill of Rights to states.

The first suggestion that a defendant had a constitutional right to be offered counsel if he or she could not afford an attorney came in Powell v. Alabama (1932) Powell v. Alabama (1932) . That decision was an outgrowth of the famous Scottsboro trials Scottsboro trials (1931-1937) , in which seven black youths had been convicted in Alabama of the rape of two white women. The case against the boys rested on dubious testimony.

Speaking for the Supreme Court in overturning the convictions, Justice George Sutherland rested the decision not upon the Sixth Amendment but upon the due process clause of the Fourteenth Amendment, which barred the states from depriving “any person of life, liberty, or property, without due process of law.” Due process, Sutherland reasoned, required a fair hearing. Failure to provide the Scottsboro boys with lawyers denied them a fair hearing. Sutherland carefully limited the scope of his holding to the facts in the case: Due process required a state court to provide effective assistance of counsel in a capital case if the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like.

The Supreme Court did not give its definitive interpretation of the meaning of the Sixth Amendment’s right-to-counsel clause until 1938, in Johnson v. Zerbst. Johnson v. Zerbst (1938) Ignoring the historical evidence regarding the provision, Justice Hugo L. Black wrote in his opinion that the Sixth Amendment required the appointment of counsel for poor defendants in federal criminal trials. Although the defendant could waive the right to have counsel assigned. The trial judge had the duty to make sure that the defendant fully understood the right to have legal assistance and had knowingly and intelligently waived that right. Did the same rule apply to state criminal trials via the Fourteenth Amendment?

The issue came before the Supreme Court in 1942 in Betts v. Brady, Betts v. Brady (1942) a case involving a conviction for robbery, a noncapital felony. At his trial in state court, the defendant, an unemployed farm laborer described by the Supreme Court as a person of “ordinary intelligence,” had requested appointment of counsel, but his request had been denied. In the trial itself, the defendant had actively participated by examining his own witnesses and cross-examining the prosecution’s. Justice Hugo L. Black strongly argued that the Fourteenth Amendment had been intended to incorporate as limits upon the states all the provisions of the Bill of Rights. Even apart from the Sixth Amendment, he held that due process required provision of counsel for those too poor to retain their own.

Justice Owen J. Roberts, writing for the 6-3 majority, held that the Fourteenth Amendment did not incorporate the Sixth Amendment as such. It was only “in certain circumstances, or in connection with other elements” that denial of a specific provision of the Bill of Rights was a violation of the due process of law guaranteed by the Fourteenth Amendment. He went on to conclude that there was nothing in history or contemporary practice to justify holding that due process required the appointment of counsel in every state criminal trial. Rather, the question in each case was whether, in the totality of circumstances, appointment of counsel was required to assure “fundamental fairness.” Given the relatively simple issues involved in the case before the Court, the majority ruled that the lack of counsel had not denied the defendant a fair trial.

In the years that followed, the Court overturned most state convictions that were appealed because of a failure to assign counsel, but it shied away from laying down a blanket rule requiring the appointment of counsel. The one exception was the requirement of appointment of counsel in all capital cases, laid down in Bate v. Illinois (1948) Bate v. Illinois (1948) . By the early 1960’s, the Court had turned against the totality-of-circumstances approach. There was growing unhappiness in the legal community with the lack of uniformity in the practices of different states. Many state judges and prosecutors complained about the uncertainty resulting from lack of a clearly defined rule. A majority of Earl Warren’s Supreme Court was committed to extending most of the provisions of the Bill of Rights to the states and to promoting a larger degree of egalitarianism in American life. At the beginning of the Court’s 1961 term, Warren instructed his law clerks to look through the petitions for review for a suitable right-to-counsel case that would give the Court an opportunity to reverse Betts. The petition selected was from Clarence Earl Gideon.

Gideon was a fifty-one-year-old drifter who had previously served four prison terms for felonies. He was charged in 1961 with breaking and entering the Bay Harbor Poolroom in Panama City, Florida, and stealing a pint of wine and some coins from a cigarette machine. When he went on trial in the Circuit Court of Bay County, Florida, on August 4, 1961, he asked the judge to appoint a lawyer for him because he could not afford to retain one himself. The judge refused, because Florida law provided for such appointment only in capital cases. After his appeal had been turned down by the Florida Supreme Court, Gideon submitted from prison a petition handwritten in pencil on lined paper to the United States Supreme Court. He argued that his conviction had violated the due process guarantee of the Fourteenth Amendment because of the trial judge’s refusal to appoint counsel. The Constitution, he wrote, required that “all citizens tried for a felony crime should have aid of counsel.”

The Supreme Court granted review on June 1, 1962, and explicitly instructed counsel to discuss whether Betts v. Brady should he “reconsidered.” In response to a follow-up petition from Gideon asking that the court appoint an attorney to argue his case, Warren suggested and his fellow justices agreed that Abe Fortas, one of the foremost lawyers in Washington, D.C., whom President Lyndon B. Johnson would later appoint to the Supreme Court, be named. The justices were unanimous in reversing Gideon’s conviction and overruling Betts.

Separate concurring opinions were written by Justices William O. Douglas Douglas, William O. , Tom C. Clark Clark, Tom C. , and John M. Harlan II Harlan, John M., II . In a symbolic gesture, Chief Justice Warren picked Justice Black, who had angrily dissented in Betts v. Brady, to write the majority opinion. In his ruling, handed down on March 18, 1963, Black held that the right-to-counsel provision of the Sixth Amendment was “subsumed” in the Fourteenth Amendment, and thus its requirement of assignment of counsel for poor defendants applied to state criminal trials. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries,” he concluded, “but it is in ours.”


At his retrial in Florida after the Supreme Court overturned his conviction, Gideon was acquitted. Thereafter, he stayed clear of the law except for a vagrancy arrest. Ten years after his death in 1972, the American Civil Liberties Union arranged for a stone to mark his grave in Hannibal, Missouri, where he had been born. Gideon was not the only one freed by the Supreme Court ruling. The new Gideon rule was applied not only prospectively to future criminal trials but also retrospectively to persons in prison who had been tried without counsel.

Before Gideon v. Wainwright, in most instances when the court assigned counsel the attorney so named received no, or at most minimal, compensation. The result was that the lawyers typically assigned were beginners or hacks. Worse, they lacked the resources for presenting the most effective defense (for example, the ability to conduct pretrial investigations). Gideon gave a powerful stimulus to improving this situation. Congress, in the Criminal Justice Act Criminal Justice Act (1964) of 1964, instituted a system of compensated legal assistance in the federal courts. Many states and localities established or expanded tax-supported public-defender or legal-aid offices.

Gideon was one of the Warren Court’s most popular criminal law decisions. There was wide support for guaranteeing poor defendants minimal legal assistance in criminal trials. More controversial were the court’s extensions of the Gideon principle. Although the opinion in Gideon did not explicitly limit the ruling to felony trials, that was the general assumption. Accordingly, many states did not provide for appointment of counsel for so-called petty offenses (typically where the punishment was no more than six months imprisonment). The Court, in Argersinger v. Hamlin (1972) Argersinger v. Hamlin (1972) , ruled that an unrepresented defendant could not be jailed for any term unless he or she had waived counsel at the trial. In 1967’s In re Gault, In re Gault (1967) the Court recognized a right to counsel in state juvenile court delinquency proceedings.

A second area of extension was to post-trial situations. Douglas v. California (1963) Douglas v. California (1963) upheld the right to appointed counsel for appeal from a conviction; Mempa v. Rhay (1967) Mempa v. Rhay (1967) extended that right to a postconviction deferred sentence or probation revocation proceeding. What most provoked attack was the extension of Gideon to the pretrial area. Escobedo v. Illinois (1964) Escobedo v. Illinois (1964) barred the police from preventing a suspect from consulting with a lawyer until interrogation had been completed. United States v. Wade (1967) United States v. Wade (1967) and Gilbert v. California (1967) Gilbert v. California (1967) held that suspects had the right to counsel, retained or appointed, at a police line-up because of the danger of faulty identification.

A series of decisions—among them Massiah v. United States (1964) Massiah v. United States (1964) , Brewer v. Williams (1977) Brewer v. Williams (1977) , and United States v. Henry (1980) United States v. Henry (1980) —appear to have taken the position that the government could not approach a defendant for evidence of his guilt in the absence of counsel any time after the initiation of judicial proceedings by an indictment or other in-court proceedings. Most controversial was the 5-4 decision in Miranda v. Arizona (1966) Miranda v. Arizona (1966) requiring state and federal officers to advise suspects before any questioning of their right to remain silent, to consult with a lawyer, to have that lawyer present at the interrogation, and to have a lawyer provided.

The backlash against what many people thought was too much protection for the criminal at the expense of society led the Supreme Court, beginning in the 1970’s, to move back from some of the extensions of Gideon. In Scott v. Illinois (1979) Scott v. Illinois (1979) , the Court sustained the conviction of an unrepresented defendant facing prosecution for an offense punishable by time and/or imprisonment who received only a money fine. Ross v. Moffitt (1974) Ross v. Moffitt (1974) held that the right to assigned counsel was limited to the first-level appeal and did not extend to discretionary appeals in the state courts or applications for review to the United States Supreme Court. Gagnon v. Scarpelli (1973) Gagnon v. Scarpelli (1973) held that counsel need not be appointed at a hearing for revocation of probation or parole unless special circumstances required legal assistance; Lassiter v. Department of Social Services (1981) Lassiter v. Department of Social Services (1981) applied the same rule to indigent mothers in proceedings to terminate their parental rights. A series of rulings have chipped away at the Miranda protections regarding the questioning of suspects in the absence of counsel, and the Court has largely rebuffed appeals challenging the effectiveness of counsel. Supreme Court, U.S.;rights of the accused Gideon v. Wainwright (1963) Sixth Amendment Civil liberties;United States Constitution, U.S.;Sixth Amendment

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Allen, Francis. “The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases.” University of Illinois Law Forum, no. 4 (1975): 518-542. A generally sympathetic appraisal of the Warren Court’s criminal law decisions.
  • citation-type="booksimple"

    xlink:type="simple">Braeman, John. Before the Civil Rights Revolution: The Old Court and Individual Rights. New York: Greenwood Press, 1988. A survey of the Supreme Court’s decision making in the area of civil liberties and civil rights up to the post-1937 revolution in constitutional law.
  • citation-type="booksimple"

    xlink:type="simple">Cole, David. “Gideon v. Wainwright and Strickland v. Washington: Broken Promises.” In Criminal Procedure Stories, edited by Carol S. Steiker. New York: Foundation Press/Thomson/West, 2006. Essay examining the legacy of Gideon and failures of the criminal justice system to live up to the obligations placed on it by the Court. Bibliographic references.
  • citation-type="booksimple"

    xlink:type="simple">Cook, Joseph G. Constitutional Rights of the Accused. 2d ed. 3 vols. Rochester, N.Y.: Lawyers Co-operative, 1985-1986. A comprehensive guide to current constitutional law regarding criminal procedure. Right-to-counsel issues are dealt with primarily in volume 2.
  • citation-type="booksimple"

    xlink:type="simple">Graham, Fred P. The Self-Inflicted Wound. New York: Macmillan, 1970. This volume by The New York Times’s Supreme Court correspondent is the fullest and most balanced account of the Warren Court’s criminal law decisions.
  • citation-type="booksimple"

    xlink:type="simple">Israel, Jerold. “Criminal Procedure, the Burger Court, and the Legacy of the Warren Court.” Michigan Law Review 75 (June, 1977): 1319-1425. Concludes that complaints that the Court under Chief Justice Warren Burger was guilty of reversing the criminal law decisions of the Warren Court have been grossly exaggerated.
  • citation-type="booksimple"

    xlink:type="simple">_______. “Gideon v. Wainwright: The Art of Overruling.” In The Supreme Court Review, 1963, edited by Philip B. Kurland. Chicago: University of Chicago Press, 1963. A critical appraisal of Justice Black’s opinion in Gideon as failing to offer a persuasive rationale for overruling Betts “consistent with the accepted image of judicial review.”
  • citation-type="booksimple"

    xlink:type="simple">Kamisar, Yale. “Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values.” Michigan Law Review 61 (December. 1962): 2 19-282. A critical appraisal of the unfairness and problems resulting from the totality-of-circumstances approach.
  • citation-type="booksimple"

    xlink:type="simple">Schwartz, Bernard. Super Chief Earl Warren and His Supreme Court, a Judicial Biography. New York: New York University Press. 1983. A look at the behind-the-scenes workings of the Supreme Court, based upon the private papers and notes of many of the justices and interviews with court members and their law clerks. Its weakness is the author’s worshipful admiration for Warren.
  • citation-type="booksimple"

    xlink:type="simple">Taylor, John B. The Right to Counsel and Privilege Against Self-Incrimination: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-CLIO, 2004. Examination of Gideon in the context of both constitutional history and common-law history. Bibliographic references and index.

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