Defense attorney resistance

INTRODUCTIONAs they considered Clarence Earl Gideon's petition, the justices of the United States Supreme Court likely had no idea what his race was.1 Before the August 19632 release of the iconic picture of Mr. Gideon in a button-down shirt looking past the camera through owlish glasses, and his portrayal by Henry Fonda in the 1980 film Gideon's Trumpet,3 Mr. Gideon's race, entirely omitted from the record of the court proceedings, was unknown. But, operating as it was in the midst of the Civil Rights Movement, it is likely that the Court viewed Gideon's case through the prism of its deep and abiding concern about racial injustice.4 Statute by statute, in civil and criminal cases, and in words and actions, the Court "disassembled the legal scaffolding of American apartheid, one indignity at a time."5 The Warren Court's concern about racial injustice was so broad "that it played a significant role in shaping many of the most important constitutional decisions of the Supreme Court in areas as diverse as federalism; separation of powers; criminal law and procedure; freedom of speech, association, and religion; procedural due process of law; and democracy."6 The Court's decisions are full of language evincing its concern over racial injustice. For example, in Miranda v. Arizona,7 "Chief Justice Warren stressed the impact of private interrogation on . . . 'an indigent Los Angeles Negro who had dropped out of school in the sixth grade.'"8 And the Court remarked that the facts in Duncan v. Louisiana "bore hallmark indicia of Jim Crow injustice."9 As the Court would proclaim in Green v. County School Board of New Kent County, the mission of the post-Brown cases was to eliminate race discrimination "root and branch."10 So it was with the right-to-counsel cases, the most famous of which is Gideon, the Court sought to address its "concern over a criminal justice system where white judges and prosecutors processed poor, unrepresented blacks and Hispanics."11When the Gideon decision was handed down in 1963, the nation was swept up in the zeitgeist of the Civil Rights Movement, and the demographics of the nation's criminal justice system crystallized the need for intervention. The FBI's crime index for arrest rates between 1965 and 1972 indicate that non-white adults were arrested at least five times the rate of white adults. With respect to juveniles, non-whites were arrested at least twice as often as white juveniles during the same period. When arrested for violent crimes, non-whites were arrested at least nine times as often as white people between 1963 and 1972.12 Indeed, the Court had "two main purposes" when it decided Gideon: (1) protecting the innocent from conviction; and (2) protecting African Americans from Jim Crow injustice.13 Although the first goal was explicit, and second goal was covert,14 there is no mistaking that Gideon was a racial justice case.15But if Gideon's pronouncement was motivated by the pursuit of racial justice, its promise remains largely unfulfilled. Whether it represents a retrenchment of racial mores in response to the gains of the Civil Rights Movement, or results from innumerable other factors, the subsequent explosion in the population of the nation's criminal justice system since 1972 has been well-documented. Beating out even China, the United States has the highest incarceration rate in the world.16 The U.S. incarceration rate has increased roughly six-fold, from fewer than 350,000 people in state and federal prisons and jails nationwide in 1972,17 to around 2.3 million people as of June 30, 2009.18 This number translates to 748 inmates per 100,000 U.S. residents.19 More than one in every 100 adult U.S. residents lives behind bars.20As if the sheer numbers weren't enough, the racial demographics behind these statistics lend them a distinctly troubling complexion. In 2009, black males comprised less than thirteen percent of the U.S. population,21 but accounted for almost 40% of the male jail and prison population. …