Gideon V. Wainwright - from a 1963 Perspective

INTRODUCTIONGideon v. Wainwright1 is more than a "landmark" Supreme Court ruling in the field of constitutional criminal procedure.2 As evidenced by the range of celebrators of Gideon's Fiftieth Anniversary (extending far beyond the legal academy)3 and Gideon's inclusion in the basic coverage of high school government courses,4 Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court's ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for the Supreme Court Review's coverage of the Court's 1962-63 term. Phillip Kurland, the Review's editor, made Gideon my assignment, noting that the Court during that term had decided numerous constitutional criminal procedure cases and Gideon clearly was the most prominent of those rulings. As my research progressed, I came to the conclusion that Gideon was more significant as a case study in the crafting of an opinion that overruled a previous decision (Gideon had overruled Betts v. Brady5) than as a contribution to the field of constitutional criminal procedure. Indeed, as I noted in the introduction to my article on Gideon and the "art of overruling,"6 Gideon appeared to have less doctrinal and practical significance than two other criminal procedure rulings decided on the same day-Douglas v. California7 and Fay v. Noia.8 This Essay recounts the analysis that led me to view Gideon in 1963 as an important, but limited, decision- certainly not one destined to be an all-time landmark ruling.The Gideon extension of the state's obligation to provide appointed counsel for indigent defendants struck me in 1963 as not nearly as significant as other recent developments in the rapidly expanding constitutional regulation of the state criminal justice processes-in particular Mapp v. Ohio's application of the Fourth Amendment's exclusionary rule to the states.9 Gideon overruled Betts v. Brady, which had held that the state's obligation to provide appointed counsel was limited to instances in which the special circumstances of the case required counsel's assistance in order to gain a fair trial.10 Overruling Betts in 1963 did not mean as much as it would have if done shortly after Betts was decided in 1942. In the intervening years, the Court had recognized that appointment was required in all capital cases (the potential of the death penalty apparently constituting a per se special circumstance).11 In non-capital felony cases, "special circumstances" had come to include some very common circumstances.12 Appointment of counsel had been required simply because the prosecution was brought under a statute that could present interpretative issues as to its coverage,13 or trial proceedings offered an opportunity to raise an objection or pursue a strategy that could not readily be evaluated by a layperson.14 Thus, a leading casebook, in adding the Gideon case to its 1963 supplement, asked: "After Chewning v. Cunningham what was left of Betts v. Brady to overrule?"15As Justice Harlan noted in his Gideon concurrence,16 the state court rulings applying Betts had often failed to take into account this broad reading of special circumstances. Thus, the practical impact of Gideon, in flatly rejecting Betts, had the potential to be substantially greater than the limited doctrinal extension of the constitutional right. However, by 1963, only five states were regularly relying on Betts.17 The remainder, as a matter of state law or state practice, were regularly appointing counsel in at least all felony cases (and Gideon presented only a felony case18).The limited practical and doctrinal impact of the Gideon holding did not necessarily define Gideon's place in the rapidly expanding field of constitutional criminal procedure. Gideon might be assigned far greater significance as a result of the implications of that decision for issues that went beyond the overruling of Betts. …