Concept
Appointed Counsel in Felony Cases
Attachment and appointed counsel
Appointed Counsel in Felony Cases
Attachment fixes the moment the Sixth Amendment right to counsel begins, and it leaves open a separate question that matters to most defendants: who receives a lawyer at public expense. In the federal system perhaps 80 percent of those charged with crimes cannot afford to hire counsel, and the need in the states is probably similar.1 If the Constitution guaranteed only the right to use a lawyer one could pay for, that majority would face the prosecution alone. The answer for felony prosecutions comes from Gideon v. Wainwright, which this section takes in two parts: the rule itself, and the reason it binds state courts as well as federal ones.2 Misdemeanors, where the line falls differently, come in the section that follows.
The Gideon Rule
The Sixth Amendment requires that indigent defendants charged with felonies be provided with appointed counsel at trial.3 Indigent here means unable to afford a lawyer, which is a narrower idea than destitute. The question is whether the defendant can pay for counsel after weighing income, property, dependents, debts, the seriousness of the charge (a rough measure of what a private lawyer would charge), and other legal expenses such as bail.4 Two facts therefore trigger the rule, a felony charge and an inability to pay, and once both are present the state must supply the lawyer.
The facts of Gideon show the setting in which the rule arose. Clarence Earl Gideon was charged in a Florida state court with breaking and entering a poolroom with intent to commit a misdemeanor, an offense that is a felony under Florida law.5 He appeared without funds or a lawyer and asked the court to appoint one, and the trial judge refused because Florida allowed appointed counsel only in capital cases.6 Gideon then did what a layman could do: he made an opening statement, cross-examined the State's witnesses, called witnesses of his own, declined to testify, and argued his innocence to the jury, which convicted him and sent him to state prison for five years.7 His competent-looking performance did not rescue the Florida procedure, because the right belongs to every indigent felony defendant and does not depend on how well a layperson manages without a lawyer.
The reason for the rule lies in the structure of a criminal trial. The state supplies trained prosecutors, and the rules of evidence and procedure that govern the contest are beyond the skill of an ordinary person. The Court reasoned that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."8 Without that guarantee the quality of a trial would depend on the defendant's wealth, so the same charge would produce a lawyer-led defense for one accused and a layperson's improvisation for another. The Court had already refused, in Griffin v. Illinois, to let ability to pay shape the appeal a defendant received, and 22 states joined an amicus brief urging that counsel be made a constitutional protection for all.9 Because fairness itself depends on counsel, the Court treats the right as fundamental and does not confine it to cases with special circumstances.
The second half of the rule supplies the remedy. Denial of counsel at a trial where the defendant was entitled to a lawyer requires automatic reversal of the conviction.10 Most constitutional errors are reviewed for harmlessness, and a conviction survives if the error was harmless beyond a reasonable doubt.11 The denial of counsel belongs to the short list of errors that can never be treated as harmless, because the error is so serious and so hard to evaluate: a reviewing court cannot reconstruct the motions that would have been filed, the witnesses who would have been examined differently, or the plea that would have been weighed.12 That structural character also strips such a conviction of later use. In Loper v. Beto a conviction void under Gideon could not be used to impeach the defendant's credibility at a later trial, and in Burgett v. Texas it could not serve as a prior conviction under a recidivist statute.13
Two limits keep the rule in proportion. The duty runs to a defendant who cannot obtain counsel, so a defendant who can afford a lawyer keeps the right to hire one but has no claim to a lawyer paid for by the state.14 A defendant who competently and intelligently waives counsel also need not be given one, which matches the federal practice that Gideon describes.15 The Sixth Amendment even protects a defendant's choice to represent himself.16 The holding is also stated for felonies, and how far down the scale of offenses appointment reaches is a question for the next section.
The charge and the court's refusal are identical in both versions, so the variable that moves the answer is ability to pay. On an exam stem in which an indigent felony defendant is tried after the judge refuses to appoint a lawyer, the analysis ends at the denial itself. Students lose this issue when they ask whether the lack of a lawyer changed the outcome, because the denial of counsel requires reversal without that inquiry.17
Application to the States
Gideon was prosecuted in a state court, so the Sixth Amendment guarantee could reach him only if the Fourteenth Amendment carried it there. Federal courts had long been required to provide counsel to defendants unable to employ it unless the right was competently and intelligently waived.19 State practice varied. In the early 1960s a state defendant received appointed counsel only if state law required it or the trial judge chose to give it, which left room for Florida to confine appointment to capital cases.20 The constitutional floor was narrow. Powell v. Alabama had found a due process right to appointed counsel, but only in a capital case where the defendant could not adequately make his own defense because of ignorance, illiteracy, or similar limits.21
The obstacle to a broader right was Betts v. Brady, decided in 1942 by a divided Court.22 Betts asked whether the Sixth Amendment's counsel guarantee is so fundamental and essential to a fair trial that due process makes it obligatory on the states. It surveyed the history of state constitutional and statutory provisions and concluded that appointment of counsel is not a fundamental right essential to a fair trial.23 Having denied that the right was fundamental, Betts tested each refusal by the totality of the facts and held that the refusal in that case was not so offensive to common and fundamental ideas of fairness as to deny due process.24 Later decisions had already begun to erode the capital-case line. In Ferguson v. Georgia the Court struck down a state practice that denied effective assistance of counsel and cautioned that the Fourteenth Amendment's command also applies to a person tried for a noncapital offense.25
Gideon accepted the question Betts posed and rejected its answer. The facts of the two cases were so nearly indistinguishable that leaving Betts standing would have required rejecting Gideon's claim, and after full reconsideration the Court overruled it.26 The logic follows from how Betts framed the issue: if appointment of counsel for an indigent defendant is a fundamental right essential to a fair trial, the Fourteenth Amendment requires it in state court just as the Sixth Amendment requires it in federal court.27 The Court concluded that it is fundamental, because ordinary citizens lack the skills to mount an effective defense and indigent defendants cannot be assured a fair trial without the guiding hand of counsel.28 Once the premise changed, the conclusion changed with it, and the Due Process Clause now carries the felony-trial guarantee to the states.
The categorical rule also corrects a practical flaw in the case-by-case test. A totality inquiry asks a trial judge to predict, before the trial begins, whether this defendant can manage without a lawyer, and the only proof that the prediction was wrong is the unfair trial itself. A rule keyed to the charge and the defendant's poverty removes the prediction.
The judge's reasoning in that scenario is the totality-of-the-facts inquiry that Betts permitted, and Gideon replaced it with a rule that does not ask how capable the particular defendant seems.29 The state-court reach of Gideon should also be kept apart from appointed counsel on appeal. Douglas v. California, decided the same day, required counsel for an indigent defendant's first appeal granted as of right, but it rested on the Fourteenth Amendment's equal protection and due process guarantees rather than on the Sixth Amendment.30 That appellate right stops short of discretionary review, as Ross v. Moffitt held, so the appeal rule has its own limits and does not share the reasoning that binds states at trial.31
The Gideon Rule
The Sixth Amendment requires that an indigent defendant charged with a felony be given appointed counsel at trial, and a conviction obtained at a trial where the defendant was entitled to a lawyer and had none must be reversed automatically.33 Two facts trigger the duty. The first is a felony charge. The second is that the defendant is indigent, which here means unable to afford a lawyer.34 The rule has a federal pedigree, because the Sixth Amendment had already withheld from federal courts the power to take an accused person's liberty unless the accused had counsel or waived it.35 The material below follows the rule through the facts that produced it, the approach it displaced, the reasons behind it, and its remedy.
The case that gave the rule its name began with a Florida poolroom. In Gideon v. Wainwright Clarence Earl Gideon was charged with breaking and entering a poolroom with intent to commit a misdemeanor, an offense that Florida treated as a felony.36 He appeared without funds or a lawyer and asked the trial court to appoint one, and the judge refused because Florida allowed appointment only when the charge was a capital offense.37 Gideon then tried the case himself. He made an opening statement, cross-examined the State's witnesses, called witnesses of his own, declined to testify, and argued his innocence to the jury, which convicted him and sent him to state prison for five years.38 He pursued the matter from prison with a handwritten petition, and when the Supreme Court took the case it appointed Abe Fortas to argue on his behalf.39
The doctrine that Gideon displaced treated this very scenario as a question of degree. Under Betts v. Brady, decided in 1942, a refusal to appoint counsel for an indigent state felony defendant did not necessarily violate due process, and each claim was tested by an appraisal of the totality of the facts in the particular case.40 Powell v. Alabama had recognized a right to appointed counsel for a capital defendant who could not adequately make his own defense because of ignorance, feeble-mindedness, illiteracy, or the like.41 Taken together, those decisions left a noncapital defendant to argue that something about his own situation required a lawyer, and what he had to show was labeled special circumstances.42 Under that regime the defendant carried the burden of proving, case by case, that a trial without counsel would be unfair.
Betts and Gideon show how little the facts had to do with the change. Betts was indicted for robbery in Maryland, told the trial judge he lacked money for a lawyer, and learned that the county appointed counsel only in murder and rape cases. He then cross-examined the State's witnesses and called his own, and he received eight years, and the Court affirmed the conviction.43 The Court in Gideon described the facts of the two cases as strikingly alike.44 It reasoned that Betts, if left standing, would require rejecting Gideon's claim, and after full reconsideration it overruled Betts.45 Two nearly identical cases therefore came out opposite ways because the governing question changed. The inquiry stopped being whether this defendant's circumstances were special and became whether the charge was a felony and the defendant was unable to obtain counsel.
The reasons for a categorical rule come from the structure of an adversary trial. Governments spend heavily on the machinery that tries people accused of crime and hire lawyers to prosecute, while defendants with money hire the best lawyers they can find, and the Court took both facts as strong evidence that lawyers in criminal courts are "necessities, not luxuries."46 The rule answers two separate problems. One is a gap in skill: a layperson cannot tell whether an indictment is good, does not know the rules of evidence, and may be convicted on incompetent or inadmissible proof even when innocent, because the person lacks the knowledge to establish innocence.47 The other is a gap in wealth: if the quality of a defense depends on what the accused can pay, the ideal that every defendant stands equal before the law cannot be realized, because the poor defendant faces the accusers alone.48 Those two gaps also explain why a case-by-case test fails. Gideon conducted his defense about as well as a layperson could, yet a competent-looking performance says nothing about whether the trial was fair, and a test that asks a judge to predict in advance whether a particular defendant can manage alone favors the articulate and disadvantages everyone else.
The second half of the holding supplies the remedy, and it is unusually strict. Most constitutional errors at trial can be excused if the government shows beyond a reasonable doubt that they were harmless, but a short list of errors can never be excused that way because they are so serious or so hard to evaluate, and the denial of counsel is on that list.49 The reason lies in what a lawyer does. Counsel decides which charges to challenge, which witnesses to call, how to cross-examine, and whether to bargain, and the record of a trial without a lawyer shows none of the choices that were never made. A reviewing court asked to measure prejudice would be guessing about a trial that did not happen. The Court had long said that the right to counsel is "too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial."50
Reversal sets the conviction aside and does not bar a new trial. In North Carolina v. Pearce, Rice had pleaded guilty in Alabama to four burglary charges and received ten years, and about two and a half years later the judgments were set aside because he had not been accorded his right to counsel under Gideon, after which he was retried.51 The same defect invalidates a plea, since after Gideon a guilty plea to a felony entered without counsel and without a valid waiver is invalid.52
Two concurring opinions show why the Betts structure could not survive, each attacking it from a different side. Justice Clark, concurring, would not separate capital from noncapital cases, and he pointed to earlier decisions cautioning that the command of the Fourteenth Amendment applies to a person tried for a noncapital offense as well as a capital one.53 Justice Harlan agreed that Betts should be overruled, though he thought it deserved a more respectful burial, and in his view the special-circumstances approach had already hardened in practice until the fact of a serious criminal charge was itself a special circumstance.54 The Gideon rule adopts the position where both concurrences arrived, so a defendant facing a felony needs no showing beyond the charge and the inability to obtain counsel.
The charge and the request are identical in both versions, so ability to pay is the variable that moves the answer. On an exam stem where an indigent felony defendant asks for a lawyer, is refused, and goes to trial alone, the analysis ends at the refusal. Students lose this issue by asking how well the defendant managed alone, an inquiry the old approach invited and the Gideon rule closed, since Gideon himself did about as well as a layperson could and was still entitled to a lawyer.55
Application to the States
The Gideon rule is phrased in terms of the Sixth Amendment, yet the Bill of Rights was written to restrain the federal government and most felony prosecutions are brought by states. The Sixth Amendment therefore cannot reach a state courtroom of its own force, which means the source of a state's duty to appoint counsel has to be identified separately. Before Gideon, state felony defendants were not guaranteed a lawyer: the Sixth Amendment had been construed to apply only to the federal government, so a state defendant received appointed counsel only if state law provided for it or the trial judge chose to appoint.57 Federal courts stood on different ground. In Johnson v. Zerbst the Court had called the assistance of counsel "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty," and the right to appointed counsel was firmly established in federal proceedings under that decision.58 What remained was to carry that federal baseline across to the states.
The vehicle that carries a federal guarantee into state court is the Due Process Clause of the Fourteenth Amendment, which forbids a state to deprive anyone of liberty without due process of law. The Court does not read that clause to import every Bill of Rights provision automatically. It asks, guarantee by guarantee, whether the right is fundamental, and the opinions phrase the question in several ways: whether the right is among the fundamental principles of liberty and justice at the base of our institutions, whether it is basic in our system of jurisprudence, and whether it is fundamental and essential to a fair trial.59 The filter exists because states are entitled to run their own courts in their own way, so the clause overrides a state's procedure only where lacking that procedure would make the trial itself unfair. Gideon accepted the premise that a Bill of Rights provision "fundamental and essential to a fair trial" is made obligatory upon the states by the Fourteenth Amendment, and it parted from Betts v. Brady only on whether counsel qualifies.60 The Court answered yes, relying on its own earlier declaration that the right to the aid of counsel is of this fundamental character.61 Once counsel passed the filter, the federal guarantee applied in state court, and later decisions describe the result by saying the Sixth Amendment's counsel guarantee was incorporated into the Fourteenth Amendment, meaning that the protection binds the states through that amendment.62
Two dissenting positions show the range of views on how much of the federal guarantee moves to the states. Justice Black's view was that the Fourteenth Amendment made the entire Bill of Rights applicable to the states, but the Court never accepted that total approach and instead incorporated rights one at a time, which in practice reached almost every provision.63 Justice Harlan stood at the other end. Dissenting in Malloy v. Hogan, he read Gideon as resting on the conclusion that appointed counsel is essential to a fair trial and therefore part of due process, rather than on the Sixth Amendment as such.64 Dissenting in Duncan v. Louisiana, he objected that nothing justifies treating the whole body of rules built around a federal Sixth Amendment guarantee as a single unit that passes to the states together.65 Because those are dissents, an exam answer follows the Court's own description, that the Sixth Amendment guarantee applies to state prosecutions through the Fourteenth Amendment.66 Harlan's caution still marks a useful boundary, however: what Gideon moved into state court is the core entitlement to appointed counsel at an indigent felony trial, while the reach of that entitlement to lesser offenses and to appeals is set by separate decisions taken up in the sections that follow.
The application is easy to state. Clarence Earl Gideon was tried in a Florida court for a felony without a lawyer, conducted his own defense, and was sentenced to five years in prison.67 In Gideon v. Wainwright the Supreme Court held that the state owed him the lawyer a federal court would have owed any indigent felony defendant, so the conviction could not stand.68 The state's own rule about when it appoints counsel was no answer, because the duty comes from the federal Constitution and state law cannot lower it. A state satisfies the duty by doing what federal courts do, which is to furnish counsel to the indigent felony defendant at trial.
A complaint that the appointed lawyer did the job badly would be a different claim, resting on the requirement that the assistance of counsel be effective.69 On an exam, a stem describing an indigent felony defendant tried without a lawyer in state court calls for the Sixth Amendment guarantee of appointed counsel together with the Fourteenth Amendment as the route that binds the state. An answer that cites the Sixth Amendment without the Fourteenth Amendment as the route into state court skips the step that makes the rule reach the state at all.