ESSAY CONTENTS INTRODUCTION I. THE RISE OF THE RIGHT TO COUNSEL A. Help for the "Ignorant Negro" B. Two Notes from Gideon's Trumpet II. THE BURDEN OF GIDEON CONCLUSION INTRODUCTION
Two central features of the criminal justice system are its impact on minorities, both absolutely and compared to whites, (1) and the often inadequate quality of representation provided to those who cannot afford to retain counsel. (2) Many scholars suggest that these are connected and that African Americans and other people of color suffer disproportionately because they lack access to high-quality representation. (3) The story of Clarence Gideon, the victor in Gideon v. Wainwright, (4) supports this idea. Forced to go to trial for burglary with no attorney, he was convicted. After winning in the Supreme Court, with the assistance of experienced counsel, he was acquitted.
In individual cases, particular clients would be helped by better lawyers with lighter caseloads. Certainly, many wrongful convictions, injustices, and tragedies could be avoided with better trained and resourced counsel. But this is different from saying that all, most, or even much of the system's racial disproportionality could be remedied by competent defense lawyers.
This Essay proposes that the right to counsel as articulated by the Court has not been and likely cannot be a remedy for systematic racial disproportionality in the criminal justice system. Paradoxically, right-to-counsel jurisprudence may have made the predicament of African Americans and other racial minorities worse.
Right-to-counsel jurisprudence in the era before Gideon is fairly understood as an outgrowth of Jim Crow ideology. The Supreme Court and other state and federal courts often recognized and remedied injustices faced by African-American defendants. But courts did not do so using the language of rights and justice; instead, they frequently rested their decisions on African-American ignorance and incompetence. Thus, the constitutional right to counsel was a double-edged sword. The very reason African Americans received appointed counsel in particular cases also justified special scrutiny of African Americans in general by the criminal justice system.
Gideon itself, a case involving a white petitioner, was not decided in those terms. The Court in that case recognized the importance of counsel for any layperson, regardless of intelligence and education. Yet, Gideon was a race case, in that Gideon and the Court's other criminal procedure cases of the era were concerned with institutional racism. (5) But it was also, quite clearly, an incremental case. Neither Gideon nor any of its contemporaries or successors was the Brown v. Board of Education of criminal justice, insisting that governments craft a criminal justice "system in which racial discrimination would be eliminated root and branch." (6)
Gideon, by its terms, was designed to remedy wrongful accusations against the innocent, and it was a constructive step in that direction. But it left in place several forms of racial discrimination in the criminal justice system. And it was decided in the context of a criminal justice system much smaller than the one which now exists. (7)
The critical problem of the criminal justice system now, and the one that particularly burdens African Americans, is not the wrongful conviction of the innocent, as important as it is to remedy that injustice. (8) The problem is a lack of fairness in deciding what to criminalize and how to enforce those prohibitions. (9) Most criminal defendants affected by the war on drugs, other forms of overcriminalization, and mandatory minimums and other harsh sentences are, as far as can be known, guilty, and thus cannot, at least systematically, be exonerated even by excellent counsel. But convictions of the guilty selected for punishment because of race are not the kinds of judgments Gideon was designed to prevent, and under the Court's decisions, they are not injustices which counsel can normally address.
Ironically, the wide availability of counsel may make racial disproportionality worse. Because whites are relatively more affluent than people of other races, and because they experience less intergenerational poverty and economic segregation, defense counsel may be able to get white defendants and their families to do things that encourage favorable exercises of discretion in the processing and disposition of criminal cases. In contrast, African-American defendants often lack family or community resources or demographic characteristics that engender sympathy from judges and prosecutors and which can be employed by energetic counsel. As a result, more widely available, high-quality counsel may exacerbate existing racial discrimination and disadvantage by operationalizing them in court.
THE RISE OF THE RIGHT TO COUNSEL
Help for the "Ignorant Negro"
In the pre-Gideon era, the price of due process was racial denigration. Courts granting relief, including the Supreme Court, often described defendants as "ignorant negroes." (10) In Walton v. State, (11) the Texas Court of Criminal Appeals set aside a defendant's guilty plea for unlawfully transporting liquor, noting that the defendant "was an ignorant, illiterate negro, not versed in the law, and did not know his legal rights." (12) In another case, Griffin v. State, (13) the Mississippi Supreme Court granted a defendant relief because "[t]his ignorant negro boy had no counsel to represent him at the trial. He introduced no evidence, nor did he testify in his own behalf, but sat in silence throughout the trial." (14)
The self-congratulatory and patronizing implications of these cases were, first, that the problem was African-American ignorance and second, that the problem could be remedied with a lawyer. (15) Both implications were false. Walton and Griffin, for example, had potential defenses, but both defenses were quite technical and could have been missed by even a shrewd and well-educated nonlawyer. If Walton had been transporting liquor for his own use, there was no violation of the statute; (16) because the defendant in the Mississippi case worked where the larceny occurred, there was a question about the "breaking and entering" element of the crime. (17) Their need for lawyers did not stem from their supposed racial ignorance, for even knowledgeable defendants might have missed these fine points of law.
In addition, appointing lawyers would not necessarily have remedied the racism African-American defendants experienced in courtrooms north and south. In State v. Floyd, (18) a rape case, the South Carolina Supreme Court affirmed a capital sentence, noting the "horror at even the thought of a white woman being subjected to the embraces of a negro brute." (19) Not surprisingly, what a dissent suggested was "largely perfunctory" (20) representation by appointed counsel at trial failed to prevent conviction, even though several justices insisted, based on the evidence, that the defendant might be innocent. (21)
Even the best possible representation was likely to be insufficient to obtain fair treatment of people perceived as "brute[s]." (22) The major pre-Gideon development in right-to-counsel jurisprudence was Powell v. Alabama, (23) the 1932 case involving the Scottsboro Boys. The Court held that due process of law generally requires the assistance of counsel in capital cases. (24) Consistent with the decisions recounted above, the Court was concerned with the defendants' intelligence. Failure to appoint counsel was a denial of due process, the Court explained, because of "the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, ... the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives." (25)
And yet, the subsequent history of the Scottsboro defendants makes clear that counsel was no solution. After the victory in the Supreme Court, the defendants were retried while being represented by the celebrated Samuel Leibowitz, "one of the nation's leading criminal defense lawyers." (26) "The jury took just five minutes to convict," (27) and the defendants were sentenced again to death. After the trial judge granted a new trial, two of the men were tried a third time and again condemned. (28) Although they avoided execution and were ultimately released--some after decades--their lives were saved as much by international notoriety as by the good works of counsel.
A number of obstacles blocked even the most capable and zealous counsel. Thurgood Marshall was arguably the greatest lawyer of the twentieth century, yet "the legal and social setting" limited his ability and the ability of other NAACP attorneys to take advantage of the law. (29) One problem was the credibility given to white witnesses and denied to African Americans and other witnesses of color. When a white witness testified, "in Southern courtrooms, no matter how incredible the testimony was, juries and judges accepted it." (30) This phenomenon is reflected in the many statements in appellate cases offering special credit to white witnesses (31) or denying credibility to African Americans. (32) Again, individual litigants of color sometimes won, but often at the cost of reinforcing the rationale for racial discrimination in general.
Substantive criminal law presented another difficulty. As one example, vagrancy laws were an important tool of racial oppression and were not definitively limited until the late 1960s. (33) Justice Frankfurter explained that in their drafting, "[d]efiniteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense." (34) The Court considered, but found itself unable to invalidate, convictions for...