# Bute v. Illinois/Dissent Douglas

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
333 U.S. 640
Bute v. Illinois
Argued: Feb. 12, 1948. --- Decided: April 19, 1948
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice MURPHY and Mr. Justice RUTLEDGE concur, dissenting.
In considering cases like this and the ill-starred decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, we should ask ourselves this question: Of what value is the constitutional guaranty of a fair trial if an accused does not have counsel to advise and defend him?
The Framers deemed the right of counsel indispensable, for they wrote into the Sixth Amendment that in all criminal prosecutions the accused 'shall enjoy the right * * * to have the Assistance of Counsel for his defence.' Hence, if this case had been tried in the federal court appointment of counsel would have been mandatory, even though Bute did not request it. See Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. I do not think the constitutional standards of fairness depend on what court an accused is in. I think that the Bill of Rights is applicable to all courts at all times. Mr. Justice Black demonstrated in his dissent in Adamson v. California, 332 U.S. 46, 68, 71, 67 S.Ct. 1672, 1684, 1686, that a chief purpose of the Fourteenth Amendment was to protect the safeguards of the Bill of Rights against invasion by the states. If due process as defined in the Bill of Rights requires appointment of counsel to represent defendants in federal prosecutions, due process demands that the same be done in state prosecutions. The basic requirements for fair trials are those which the Framers deemed so important to procedural due process that they wrote them into the Bill of Rights and thus made it impossible for either legislatures or courts to tinker with them. I fail to see why it is due proe §§ to deny an accused the benefit of counsel in a state court when by constitutional standards that benefit could not be withheld from him in a federal court.
But if we take the view more hostile to the rights of the individual and assume that procedural due process guaranteed by the Fourteenth Amendment provides lesser safeguards than those of the Bill of Rights, the result should be the same. Then the question is whether the appointment of counsel for Bute was required 'by natural, inherent, and fundamental principles of fairness.' Betts v. Brady, supra, page 464 of 316 U.S., at page 1257 of 62 S.Ct.
Illinois allows counsel to everyone charged with crime. To obtain counsel, however, the accused has to ask for one and also to state upon oath that he is unable to procure counsel. People v. Van Horn, 396 Ill. 496, 498, 72 N.E.2d 187. But, as held by the Illinois Supreme Court in the present case, the court need not advise him of his right to counsel. The Illinois rule apparently proceeds from the premise that the average person knows of his right to counsel and resorts to an attorney in case he gets caught in the toils of the law. That view, if logically applied, would not require appointment of counsel in any case-capital or otherwise. For a man charged with murder usually knows whether or not it was his blow or shot that killed the deceased and therefore whether he is unjustly accused. And he certainly knows he is in serious trouble when he is faced with such a charge. The logic of the Illinois view would lead to the conclusion that the average man in those circumstances would know enough to demand a lawyer to defend him and that the court need not offer one to him.
Fortunately for the liberal tradition the law has followed a different course. At least where the offense charged is a capital one, due process requires appointment of counsel in state as well as in federal prosecutions. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; De Meerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596. The reason is that the guilty as well as the innocent are entitled to a fair trial, that a layman without the experience and skill of counsel to guide him may get lost in the intricacies of the law and lose advantages which it extends to every accused, that without expert appraisal of the circumstances surrounding his arrest, detention, arraignment, and conviction the penalties he suffers may be aggravated by his own ignorance or by overreaching of the prosecution or police. Hence the need for counsel exists in capital cases whether the accused contests the charge against him or pleads guilty. Foster v. Illinois, 332 U.S. 134, 137, 67 S.Ct. 1716, 1718.
Those considerations are equally germane though liberty rather than life hangs in the balance. Certainly due process shows no less solicitude for liberty than for life. A man facing a prison term may, indeed, have as much at stake as life itself.
Bute was charged with a most repulsive crime. It may seem easy to say that it is a simple and uncomplicated one, and therefore that he should know whether he committed it and whether he stood in need of counsel. But it has long been recognized that the charge of taking indecent liberties with a child is, like rape, 'an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, the never so innocent.' 1 Hale's Pleas of the Crown 634. As stated by the Illinois Supreme Court in People v. Freeman, 244 Ill. 590, 594, 91 N.E. 708, 709, 'Public indignation is even more apt to be aroused in prosecutions for crimes of this kind against children than when the charge is brought by an adult.' Certainly the appraisal of such imponderables, the weight of the prosecution's case, the character of the defense which is available are all questions which only a skilled lawyer can consider intelligently. A layman might rush to confession where counsel would see advantages in a trial before judge or jury. Counsel might see weakness in the prosecution's case which could be utilized either in standing trial or in pleading guilty to a lesser offense. These are the circumstances of the present case which Bute uses to appeal to our conscience. They without more convince me that we could be sure Bute had a fair trial only if counsel had stood at his side and guided him across the treacherous ground he had to traverse.
Betts v. Brady, supra, holds that we must determine case by case, rather than by the Sixth Amendment, whether an accused is entitled to counsel. A man who suffers up to 20 years in prison as a penalty is undergoing one of the most serious of all punishments. It might not be nonsense to draw the Betts v. Brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter. But to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. Yet it is the need for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. And the need for counsel, even by Betts v. Brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the court. That need is measured by the nature of the charge and the ability of the average man to face it alone, unaided by an expert in the law. As Powell v. Alabama, supra, indicates, the need for counsel in capital cases is great even though the defendant is an intelligent and educated layman. The need is equally as great when one stands accused of the serious charge confronting Bt e.

## Notes

* ↑ Betts v. Brady was decided June 1, 1942. Benjamin V. Cohen and Erwin N. Griswold, writing in the New York Times, August 2, 1942, stated:
* ↑ 'Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense. In all cases counsel shall have access to persons confined, and shall have the right to see and consult such persons in private.
* ↑ For a summary of the Illinois cases, see the dissenting opinion of Mr. Justice Rutledge in Foster v. Illinois, 332 U.S. 134, 143, 144, 67 S.Ct. 1716, 1721.
* ↑ The classic statement is that of Mr. Justice Sutherland in Powell v. Alabama, supra, pages 68, 69, of 287 U.S., page 64 of 53 S.Ct.:
* ↑ The specific intent which is an ingredient of this offense may be disproved by a showing of intoxication (People v. Klemann, 383 Ill. 236, 48 N.E.2d 957) or insanity. Ill.Rev.Stat.1937, c. 38, §§ 590, 592.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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