ESSAY CONTENTS INTRODUCTION I. THE GIDEON REVOLUTION A. The Decision B. How Do I Love Gideon? Let Me Count the Ways II. GIDEON'S PERSISTENCE A. Mapp v. Ohio's Contraction B. Miranda v. Arizona's Contraction C. Wade v. United States's Limitation D. Gideon's Expansion III. THE SHAM(E) OF INEFFECTIVE COUNSEL A. The Importance of Adequate Assistance of Defense Counsel B. The Legal Standard for Adequate Assistance C. Judicial Approval of Inadequate Assistance IV. COUNSEL'S NEED FOR ASSISTANCE CONCLUSION INTRODUCTION
There is no doubt that Gideon v. Wainwright (1) is extraordinary. But extraordinariness can come in more than one flavor. In thinking about Gideon, we were reminded of "American exceptionalism," and the diametrically opposed meanings that advocates have ascribed to the phrase. American exceptionalism posits that the United States is qualitatively different from other countries, primarily because it has a specific world mission to spread democracy and liberty.
The related image of the United States as a biblical "citty upon a hill" has deep roots, stemming from a sermon by John Winthrop to the Puritan colonists in the Massachusetts Bay Colony. (2) The phrase "American exceptionalism," however, is bipolar, having been employed almost as frequently to disparage as to laud. It became popular in the 1920s when Stalin used it to chastise American communists who heretically claimed that America's superior resources and lack of class distinctions freed it from Marxist laws of history. (3) However, American conservatives and eventually neoconservatives came to use the term-along with the image of the "shining city on the hill" (4)--to assert superiority and exemption from both the historical forces and rigid class immobility that have affected other countries. (5) That view, in turn, has prompted a fierce backlash in this century, including both normative objections that the morally tainted history of the United States precludes any role as an exemplar of virtue, (6) and positive arguments that social mobility in the United States is less than it is in many other countries. (7)
We don't pretend to have any expertise on American exceptionalism, but we do see parallels to our own thinking about Gideon. However, unlike the participants in the American exceptionalism debates, we have trouble deciding whether we find the laudatory or the disparaging meaning of "Gideon exceptionalism" more compelling. As set forth below, we think Gideon is both a "shining city on a hill" in the world of criminal procedure, and something of a sham. Part I sets forth the extraordinary features of the decision itself, and Part II echoes the aspirational meaning of "Gideon exceptionalism," laying out how the decision has survived largely intact, in sharp comparison to other landmark Warren Court criminal procedure decisions. Part III reverses course, examining how the law of ineffective assistance of counsel renders Gideon's "shining city" illusory for many defendants. Part IV concludes by explaining how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon's promise.
THE GIDEON REVOLUTION
Prior to Gideon, the Supreme Court had held that due process required states to provide counsel for indigent defendants under certain narrow circumstances. In 1932, in Powell v. Alabama, faced with well-known and outrageous facts, the Court held that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him." (8)
But later, in Betts v. Brady, (9) the Court explicitly held that the Due Process Clause did not incorporate the Sixth Amendment guarantee of the right to counsel against the states.
Three decades later, Gideon, quoting the language of Powell, held that even in a noncapital case, a showing of particular incapacity was unnecessary:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (10) B. How Do I Love Gideon? Let Me Count the Ways
Gideon may not inspire sonnets, but it does inspire accolades. Praise starts from the ironic underlying facts. An unemployed, uneducated felon who had failed in trying to defend himself against theft charges sent a handwritten note to the Supreme Court. That note, interpreted as a petition for a writ of certiorari, led to the appointment of preeminent lawyer and future Supreme Court Justice Abe Fortas to brief and argue the case. After the Court ruled that the Sixth Amendment requires the appointment of a lawyer, Clarence Gideon was retried and acquitted. (11) As David Cole notes, "Gideon's story reaffirms all that is best in the American justice system.... His story illustrates that the justice system can work for the most vulnerable among us.... "(12) Or, as Earl Warren's biographer put it, "no tale so affirmed the American democracy. No story broadcast around the world so clearly proclaimed that not just the rich received justice in American courts." (13)
But Gideon was not only a symbolic victory. It transformed criminal "justice" for thousands of indigent defendants incarcerated when it was decided. As the state's brief had pointed out, over five thousand criminal defendants who had not been represented by counsel were incarcerated in Florida alone, (14) and there were a number of other states that had not routinely provided counsel. Although the state had urged the Supreme Court that if it were to decide in Gideon's favor, it should make the decision prospective, the Court declined to do so. Instead, thousands of unrepresented prisoners were released, many of whom could not be retried. Indeed, retroactivity doctrine itself recognizes Gideon's iconic nature; Gideon is the only decision ever cited by the Supreme Court as an example of the kind of watershed rule of criminal procedure that so implicates fundamental fairness as to require retroactive application in habeas corpus. (15)
Moreover, with respect to the number of future cases affected, Gideon is unparalleled. More than a million felony defendants may be sentenced in a given year, (16) and somewhere between two-thirds and four-fifths are indigent. (17) It is impossible to know how many of the thirteen states that prior to Gideon did not require the appointment of counsel for indigent defendants would have done so in its absence, or when those states would have done so. It is also impossible to know whether in the absence of Gideon, budget pressures would have led some of the states that had previously required such appointments to regress. It is nonetheless clear that very large numbers of future defendants were affected by the decision. Moreover, although we criticize the application of the standard for ineffective assistance of counsel later in this Essay, without Gideon, there would have been absolutely no constitutional floor for the quality of representation provided. All things considered, in a contest for the single most important criminal procedure decision the Supreme Court has ever rendered, Gideon has no real competition. (18)
In addition to its symbolic and practical significance, Gideon stands out among the Warren Court "criminal procedure revolution" decisions for its continued vitality. Although the Warren Court decided more than six hundred criminal cases, (19) with the exception of Gideon, the best known and most significant of these decisions have been significantly weakened by the Burger, Rehnquist, and Roberts Courts.
Mapp v. Ohio's Contraction
Mapp, (20) decided in 1962, and dubbed by Yale Kamisar as "The First Shot Fired in the Warren Court's Criminal Procedure 'Revolution,'" (21) held that "all evidence obtained by searches and seizures in violation of the [Fourth Amendment] is, by that same authority, inadmissible in a state court." (22) The Court relied upon the need for a "deterrent safeguard ... without which the Fourth Amendment would have been reduced to a 'form of words,'" (23) and the premise that "in extending the substantive protections of due process to all constitutionally unreasonable searches--state or federal--it was logically and constitutionally necessary" to extend the exclusionary rule as well. (24) Mapp's rationale was soon narrowed, however, and over time its sweep sharply curtailed.
First, even before the Warren Court disbanded, the "constitutionally necessary" rationale began to erode; Linkletter v. Walker emphasized the deterrence rationale in deciding that Mapp was not retroactive to cases that had become "final" prior to Mapp. (25) Then the Burger Court, in United States v. Calandra, (26) while deciding that grand jury witnesses must answer questions even when based on the fruits of an illegal search, declared that whether the exclusionary rule should be applied was "a question, not of rights, but of remedies," and one whose answer must be determined by weighing the likely costs of the rule against the likely benefits. (27)
This narrowed rationale in turn facilitated a...