Gideon Was a Prisoner: On CriminalDefense in a Time of MassIncarceration

Table of ContentsI. Introduction 1364II. W. Fred Turner 1368III. The Importance of Counsel for Both the Accused and Convicted 1382IV. Conclusion 1390If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court, and if the [C]ourt had not taken the trouble to look for merit in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.But Gideon did write that letter, the [C]ourt did look into his case; he was retried with the help of a competent defense counsel, found not guilty and released from prison after two years of punishment for a crime he did not commit. . . -1I. IntroductionWhen I joined the Philadelphia public defender's office thirty years ago, Gideon v. Wainwright2 was only a couple of decades old. Frankly, I don't recall giving much thought to the case; the right to counsel seemed well established. Maybe that's because the Defender Association of Philadelphia was well established. Created in 1934, by the time I got there it already had a long and successful history of providing zealous defense to the indigent accused.3 Or maybe twenty years seems like a long time when you're only in your twenties yourself.I have been a criminal defense lawyer and criminal clinic director in New York, Massachusetts, Maryland, and the District of Columbia since then, and can't help but note the increasingly muted sound of Gideon's Trumpet4 as the criminal justice system has grown beyond all imagination. The United States has so ramped up criminal punishment that we currently incarcerate more people than any other country in the world-by far.5 As of the latest count, there are nearly 2.3 million people in prisons and jails in the United States.6 As one commentator observed, we have the highest rate of incarceration "in the history of the free world.'"7This ought to be a cause for shame-and alarm. Jails and prisons literally dot the landscape in twenty-first century America-public facilities and private, federal and state, adult and juvenile-especially in places far away from where prisoners used to live.8 New prisons and jails continue to be built notwithstanding the current economic downturn,9 or a downturn in crime.10 The idea of a "prison-industrial complex" is no longer leftist hyperbole.11 If you build it they will come.12Looking back, Gideon's time seems almost quaint. In 1961, there were just over 200,000 prisoners in the United States-less than a tenth of the current figure.13 Back then, it was conceivable that a prisoner could mail a hand-written petition for a writ of certiorari to the U.S. Supreme Court-in pencil-and have someone read it.14 The number of such hand-written pleas must have skyrocketed these past five decades, along with incarceration rates. Yet, I can't think of another U.S. Supreme Court case prompted by a prisoner's pro se plea since Gideon.15The criminal law, too, has changed. It is far more complicated, with new statutory crimes unknown to the common law and a maze of state and federal sentencing law.16 Criminal procedure has changed as well: there are now as many obstacles and exceptions as there are protections for the criminally accused.17If Clarence Earl Gideon had difficulty defending himself fifty years ago, he would now find the task virtually impossible. The stakes are considerably higher now, too: given his age and prior felony record, Gideon could have been facing a natural life sentence.18As we mark the fiftieth anniversary of this landmark decision-so full of promise, so doomed to fail19-part of me wants to reminisce about the past, another part wants to look to the future. …