U.S. Supreme Court
Gideon v. Wainwright, 372 U.S. 335 (1963)
GIDEON v. WAINWRIGHT, CORRECTIONS DIRECTOR.
CERTIORARI TO THE SUPREME COURT OF FLORIDA.
Argued January 15, 1963. Decided March 18, 1963.
Charged in a Florida State Court with a noncapital felony, petitioner
appeared without funds and without counsel and asked the Court to appoint
counsel for him; but this was denied on the ground that the state law permitted
appointment of counsel for indigent defendants in capital cases only.
Petitioner conducted his own defense about as well as could be expected of a
layman; but he was convicted and sentenced to imprisonment. Subsequently, he
applied to the State Supreme Court for a writ of habeas corpus, on the ground
that his conviction violated his rights under the Federal Constitution. The
State Supreme Court denied all relief. Held: The right of an indigent defendant
in a criminal trial to have the assistance of counsel is a fundamental right
essential to a fair trial, and petitioner's trial and conviction without the
assistance of counsel violated the Fourteenth Amendment. Betts v. Brady,
U.S. 455, overruled. Pp. 336-345.
Reversed and cause remanded.
Abe Fortas, by appointment of the Court,
U.S. 932, argued the cause for petitioner. With him on the brief were Abe
Krash and Ralph Temple.
Bruce R. Jacob, Assistant Attorney General of Florida, argued the cause for
respondent. With him on the brief were Richard W. Ervin, Attorney General, and
A. G. Spicola, Jr., Assistant Attorney General.
J. Lee Rankin, by special leave of Court, argued the cause for the American
Civil Liberties Union et al., as amici curiae, urging reversal. With him on the
brief were Norman Dorsen, John Dwight Evans, Jr., Melvin L. Wulf, Richard J.
Medalie, Howard W. Dixon and Richard Yale Feder.
George D. Mentz, Assistant Attorney General of Alabama, argued the cause for
the State of Alabama, as [372
U.S. 335, 336] amicus curiae, urging affirmance. With him on the
brief were MacDonald Gallion, Attorney General of Alabama, T. W. Bruton,
Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General
of North Carolina.
A brief for the state governments of twenty-two States and Commonwealths, as
amici curiae, urging reversal, was filed by Edward J. McCormack, Jr., Attorney
General of Massachusetts, Walter F. Mondale, Attorney General of Minnesota,
Duke W. Dunbar, Attorney General of Colorado, Albert L. Coles, Attorney General
of Connecticut, Eugene Cook, Attorney General of Georgia, Shiro Kashiwa,
Attorney General of Hawaii, Frank Benson, Attorney General of Idaho, William G.
Clark, Attorney General of Illinois, Evan L. Hultman, Attorney General of Iowa,
John B. Breckinridge, Attorney General of Kentucky, Frank E. Hancock, Attorney
General of Maine, Frank J. Kelley, Attorney General of Michigan, Thomas F.
Eagleton, Attorney General of Missouri, Charles E. Springer, Attorney General
of Nevada, Mark McElroy, Attorney General of Ohio, Leslie R. Burgum, Attorney
General of North Dakota, Robert Y. Thornton, Attorney General of Oregon, J.
Joseph Nugent, Attorney General of Rhode Island, A. C. Miller, Attorney General
of South Dakota, John J. O'Connell, Attorney General of Washington, C. Donald
Robertson, Attorney General of West Virginia, and George N. Hayes, Attorney
General of Alaska.
Robert Y. Thornton, Attorney General of Oregon, and Harold W. Adams,
Assistant Attorney General, filed a separate brief for the State of Oregon, as
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having broken and
entered a poolroom with intent to commit a misdemeanor. This offense is a
felony under [372 U.S. 335,
337] Florida law. Appearing in court without funds and without a
lawyer, petitioner asked the court to appoint counsel for him, whereupon the
following colloquy took place:
"The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to
represent you in this case. Under the laws of the State of Florida, the only
time the Court can appoint Counsel to represent a Defendant is when that person
is charged with a capital offense. I am sorry, but I will have to deny your
request to appoint Counsel to defend you in this case.
"The DEFENDANT: The United States Supreme Court says I am entitled to be
represented by Counsel."
Put to trial before a jury, Gideon conducted his defense about as well as
could be expected from a layman. He made an opening statement to the jury,
cross-examined the State's witnesses, presented witnesses in his own defense,
declined to testify himself, and made a short argument "emphasizing his
innocence to the charge contained in the Information filed in this case."
The jury returned a verdict of guilty, and petitioner was sentenced to serve
five years in the state prison. Later, petitioner filed in the Florida Supreme
Court this habeas corpus petition attacking his conviction and sentence on the
ground that the trial court's refusal to appoint counsel for him denied him
rights "guaranteed by the Constitution and the Bill of Rights by the
United States Government."1
Treating the petition for habeas corpus as properly before it, the State
Supreme Court, "upon consideration thereof" but without an opinion,
denied all relief. Since 1942, when Betts v. Brady,
316 U.S. 455, was decided by a divided [372 U.S. 335, 338] Court, the problem of a defendant's
federal constitutional right to counsel in a state court has been a continuing
source of controversy and litigation in both state and federal
courts.2 To give this problem
another review here, we granted certiorari.
370 U.S. 908. Since Gideon was proceeding in forma pauperis, we appointed
counsel to represent him and requested both sides to discuss in their briefs
and oral arguments the following: "Should this Court's holding in Betts v.
316 U.S. 455, be reconsidered?"
The facts upon which Betts claimed that he had been unconstitutionally
denied the right to have counsel appointed to assist him are strikingly like
the facts upon which Gideon here bases his federal constitutional claim. Betts
was indicated for robbery in a Maryland state court. On arraignment, he told
the trial judge of his lack of funds to hire a lawyer and asked the court to
appoint one for him. Betts was advised that it was not the practice in that
county to appoint counsel for indigent defendants except in murder and rape
cases. He then pleaded not guilty, had witnesses summoned, cross-examined the
State's witnesses, examined his own, and chose not to testify himself. He was
found guilty by the judge, sitting without a jury, and sentenced to eight years
in prison. [372 U.S. 335,
339] Like Gideon, Betts sought release by habeas corpus, alleging
that he had been denied the right to assistance of counsel in violation of the
Fourteenth Amendment. Betts was denied any relief, and on review this Court
affirmed. It was held that a refusal to appoint counsel for an indigent
defendant charged with a felony did not necessarily violate the Due Process
Clause of the Fourteenth Amendment, which for reasons given the Court deemed to
be the only applicable federal constitutional provision. The Court said:
"Asserted denial [of due process] is to be tested by an appraisal of the
totality of facts in a given case. That which may, in one setting, constitute a
denial of fundamental fairness, shocking to the universal sense of justice,
may, in other circumstances, and in the light of other considerations, fall
short of such denial."
U.S., at 462
Treating due process as "a concept less rigid and more fluid than those
envisaged in other specific and particular provisions of the Bill of
Rights," the Court held that refusal to appoint counsel under the
particular facts and circumstances in the Betts case was not so "offensive
to the common and fundamental ideas of fairness" as to amount to a denial
of due process. Since the facts and circumstances of the two cases are so
nearly indistinguishable, we think the Betts v. Brady holding if left standing
would require us to reject Gideon's claim that the Constitution guarantees him
the assistance of counsel. Upon full reconsideration we conclude that Betts v.
Brady should be overruled.
The Sixth Amendment provides, "In all criminal prosecutions, the
accused shall enjoy the right... to have the Assistance of Counsel for his
defence." We have construed [372 U.S. 335, 340] this to mean that in federal courts
counsel must be provided for defendants unable to employ counsel unless the
right is competently and intelligently waived.3 Betts argued that this right is extended to indigent
defendants in state courts by the Fourteenth Amendment. In response the Court
stated that, while the Sixth Amendment laid down "no rule for the conduct
of the States, the question recurs whether the constraint laid by the Amendment
upon the national courts expresses a rule so fundamental and essential to a
fair trial, and so, to due process of law, that it is made obligatory upon the
States by the Fourteenth Amendment."
U.S., at 465. In order to decide whether the Sixth Amendment's guarantee of
counsel is of this fundamental nature, the Court in Betts set out and
considered "[r]elevant data on the subject... afforded by constitutional
and statutory provisions subsisting in the colonies and the States prior to the
inclusion of the Bill of Rights in the national Constitution, and in the
constitutional, legislative, and judicial history of the States to the present
U.S., at 465. On the basis of this historical data the Court concluded that
"appointment of counsel is not a fundamental right, essential to a fair
U.S., at 471. It was for this reason the Betts Court refused to accept the
contention that the Sixth Amendment's guarantee of counsel for indigent federal
defendants was extended to or, in the words of that Court, "made
obligatory upon the States by the Fourteenth Amendment." Plainly, had the
Court concluded that appointment of counsel for an indigent criminal defendant
was "a fundamental right, essential to a fair trial." it would have
held that the Fourteenth Amendment requires appointment of counsel in a state
court, just as the Sixth Amendment requires in a federal court.
[372 U.S. 335, 341]
We think the Court in Betts had ample precedent for acknowledging that those
guarantees of the Bill of Rights which are fundamental safeguards of liberty
immune from federal abridgment are equally protected against state invasion by
the Due Process Clause of the Fourteenth Amendment. This same principle was
recognized, explained, and applied in Powell v. Alabama,
U.S. 45 (1932), a case upholding the right of counsel, where the Court held
that despite sweeping language to the contrary in Hurtado v. California,
U.S. 516 (1884), the Fourteenth Amendment "embraced" those
"`fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions,'" even though they had been
"specifically dealt with in another part of the federal
U.S., at 67. In many cases other than Powell and Betts, this Court has
looked to the fundamental nature of original Bill of Rights guarantees to
decide whether the Fourteenth Amendment makes them obligatory on the States.
Explicitly recognized to be of this "fundamental nature" and
therefore made immune from state invasion by the Fourteenth, or some part of
it, are the First Amendment's freedoms of speech, press, religion, assembly,
association, and petition for redress of grievances.4 For the same reason, though not always in precisely
the same terminology, the Court has made obligatory on the States the Fifth
Amendment's command that [372
U.S. 335, 342] private property shall not be taken for public use
without just compensation,5 the
Fourth Amendment's prohibition of unreasonable searches and seizures,6 and the Eighth's ban on cruel and unusual
punishment.7 On the other hand,
this Court in Palko v. Connecticut,
U.S. 319 (1937), refused to hold that the Fourteenth Amendment made the
double jeopardy provision of the Fifth Amendment obligatory on the States. In
so refusing, however, the Court, speaking through Mr. Justice Cardozo, was
careful to emphasize that "immunities that are valid as against the
federal government by force of the specific pledges of particular amendments
have been found to be implicit in the concept of ordered liberty, and thus,
through the Fourteenth Amendment, become valid as against the states" and
that guarantees "in their origin... effective against the federal
government alone" had by prior cases "been taken over from the
earlier articles of the federal bill of rights and brought within the
Fourteenth Amendment by a process of absorption."
302 U.S., at 324-325, 326.
We accept Betts v. Brady's assumption, based as it was on our prior cases,
that a provision of the Bill of Rights which is "fundamental and essential
to a fair trial" is made obligatory upon the States by the Fourteenth
Amendment. We think the Court in Betts was wrong, however, in concluding that
the Sixth Amendment's guarantee of counsel is not one of these fundamental
rights. Ten years before Betts v. Brady, this Court, after full consideration
of all the historical data examined in Betts, had unequivocally declared that
"the right to the aid of [372 U.S. 335, 343] counsel is of this fundamental
character." Powell v. Alabama,
U.S. 45, 68 (1932). While the Court at the close of its Powell opinion did
by its language, as this Court frequently does, limit its holding to the
particular facts and circumstances of that case, its conclusions about the
fundamental nature of the right to counsel are unmistakable. Several years
later, in 1936, the Court reemphasized what it had said about the fundamental
nature of the right to counsel in this language:
"We concluded that certain fundamental rights, safeguarded by the first
eight amendments against federal action, were also safeguarded against state
action by the due process of law clause of the Fourteenth Amendment, and among
them the fundamental right of the accused to the aid of counsel in a criminal
prosecution." Grosjean v. American Press Co.,
297 U.S. 233, 243
And again in 1938 this Court said:
"[The assistance of counsel] is one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and
liberty.... The Sixth Amendment stands as a constant admonition that if the
constitutional safeguards it provides be lost, justice will not `still be
done.'" Johnson v. Zerbst,
U.S. 458, 462
(1938). To the same effect, see Avery v. Alabama,
(1940), and Smith v. O'Grady,
In light of these and many other prior decisions of this Court, it is not
surprising that the Betts Court, when faced with the contention that "one
charged with crime, who is unable to obtain counsel, must be furnished counsel
by the State," conceded that "[e]xpressions in the opinions of this
court lend color to the argument...."
U.S., at 462-463. The fact is that in deciding as it did — that
"appointment of counsel is not a fundamental right,
[372 U.S. 335, 344]
essential to a fair trial" — the Court in Betts v. Brady made an
abrupt break with its own well-considered precedents. In returning to these old
precedents, sounder we believe than the new, we but restore constitutional
principles established to achieve a fair system of justice. Not only these
precedents but also reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious truth. Governments, both
state and federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are
everywhere deemed essential to protect the public's interest in an orderly
society. Similarly, there are few defendants charged with crime, few indeed,
who fail to hire the best lawyers they can get to prepare and present their
defenses. That government hires lawyers to prosecute and defendants who have
the money hire lawyers to defend are the strongest indications of the
widespread belief that lawyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries, but it is in ours.
From the very beginning, our state and national constitutions and laws have
laid great emphasis on procedural and substantive safeguards designed to assure
fair trials before impartial tribunals in which every defendant stands equal
before the law. This noble ideal cannot be realized if the poor man charged
with crime has to face his accusers without a lawyer to assist him. A
defendant's need for a lawyer is nowhere better stated than in the moving words
of Mr. Justice Sutherland in Powell v. Alabama:
"The right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be [372 U.S. 335, 345]
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."
U.S., at 68
The Court in Betts v. Brady departed from the sound wisdom upon which the
Court's holding in Powell v. Alabama rested. Florida, supported by two other
States, has asked that Betts v. Brady be left intact. Twenty-two States, as
friends of the Court, argue that Betts was "an anachronism when handed
down" and that it should now be overruled. We agree.
The judgment is reversed and the cause is remanded to the Supreme Court of
Florida for further action not inconsistent with this opinion.
[Footnote 1] Later in the petition for habeas
corpus, signed and apparently prepared by petitioner himself, he stated,
"I, Clarence Earl Gideon, claim that I was denied the rights of the 4th,
5th and 14th amendments of the Bill of Rights."
[Footnote 2] Of the many such cases to reach
this Court, recent examples are Carnley v. Cochran,
369 U.S. 506 (1962); Hudson v. North Carolina,
363 U.S. 697 (1960); Moore v. Michigan,
355 U.S. 155 (1957). Illustrative cases in the state courts are Artrip v.
State, 136 So.2d 574 (Ct. App. Ala. 1962); Shaffer v. Warden, 211 Md. 635, 126
A. 2d 573 (1956). For examples of commentary, see Allen, The Supreme Court,
Federalism, and State Systems of Criminal Justice, 8 De Paul L. Rev. 213
(1959); Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue
on "The Most Pervasive Right" of an Accused, 30 U. of Chi. L. Rev. 1
(1962); The Right to Counsel, 45 Minn. L. Rev. 693 (1961).
[Footnote 3] Johnson v. Zerbst,
304 U.S. 458 (1938).
[Footnote 4] E. g., Gitlow v. New York,
268 U.S. 652, 666 (1925) (speech and press); Lovell v. City of Griffin,
303 U.S. 444, 450 (1938) (speech and press); Staub v. City of Baxley,
355 U.S. 313, 321 (1958) (speech); Grosjean v. American Press Co.,
297 U.S. 233, 244 (1936) (press); Cantwell v. Connecticut,
310 U.S. 296, 303 (1940) (religion); De Jonge v. Oregon,
299 U.S. 353, 364 (1937) (assembly); Shelton v. Tucker,
364 U.S. 479, 486, 488 (1960) (association); Louisiana ex rel. Gremillion
366 U.S. 293, 296 (1961) (association); Edwards v. South Carolina,
372 U.S. 229 (1963) (speech, assembly, petition for redress of grievances).
[Footnote 5] E. g., Chicago, B. & Q. R. Co.
166 U.S. 226, 235-241 (1897); Smyth v. Ames,
169 U.S. 466, 522-526 (1898).
[Footnote 6] E. g., Wolf v. Colorado,
338 U.S. 25, 27-28 (1949); Elkins v. United States,
364 U.S. 206, 213 (1960); Mapp v. Ohio,
U.S. 643, 655 (1961).
[Footnote 7] Robinson v. California,
370 U.S. 660, 666 (1962).
MR. JUSTICE DOUGLAS.
While I join the opinion of the Court, a brief historical resume of the
relation between the Bill of Rights and the first section of the Fourteenth
Amendment seems pertinent. Since the adoption of that Amendment, ten Justices
have felt that it protects from infringement by the States the privileges,
protections, and safeguards granted by the Bill of Rights.
[372 U.S. 335, 346]
Justice Field, the first Justice Harlan, and probably Justice Brewer, took
that position in O'Neil v. Vermont,
U.S. 323, 362-363, 370-371, as did Justices BLACK, DOUGLAS, Murphy and
Rutledge in Adamson v. California,
332 U.S. 46, 71-72, 124. And see Poe v. Ullman,
367 U.S. 497, 515-522 (dissenting opinion). That view was also expressed by
Justice Bradley and Swayne in the Slaughter-House Cases, 16 Wall. 36, 118-119,
122, and seemingly was accepted by Justice Clifford when he dissented with
Justice Field in Walker v. Sauvinet,
92 U.S. 90, 92.1
Unfortunately it has never commanded a Court. Yet, happily, all constitutional
questions are always open. Erie R. Co. v. Tompkins,
304 U.S. 64. And what we do today does not foreclose the matter.
My Brother HARLAN is of the view that a guarantee of the Bill of Rights that
is made applicable to the States by reason of the Fourteenth Amendment is a
lesser version of that same guarantee as applied to the Federal
Government.2 Mr. Justice
Jackson shared that view.3[372 U.S. 335, 347]
But that view has not prevailed4 and rights protected against state invasion by
the Due Process Clause of the Fourteenth Amendment are not watered-down
versions of what the Bill of Rights guarantees.
[Footnote 1] Justices Bradley, Swayne and
Field emphasized that the first eight Amendments granted citizens of the United
States certain privileges and immunities that were protected from abridgment by
the States by the Fourteenth Amendment. See Slaughter-House Cases, supra, at
118-119; O'Neil v. Vermont, supra, at 363. Justices Harlan and Brewer accepted
the same theory in the O'Neil case (see id., at 370-371), though Justice Harlan
indicated that all "persons," not merely "citizens," were
given this protection. Ibid. In Twining v. New Jersey,
U.S. 78, 117, Justice Harlan's position was made clear:
"In my judgment, immunity from self-incrimination is protected against
hostile state action, not only by... [the Privileges and Immunities Clause],
but [also] by ... [the Due Process Clause]."
Justice Brewer, in joining the opinion of the Court, abandoned the view that
the entire Bill of Rights applies to the States in Maxwell v. Dow,
[Footnote 2] See Roth v. United States,
354 U.S. 476, 501, 506; Smith v. California,
361 U.S. 147, 169.
[Footnote 3] Beauharnais v. Illinois,
343 U.S. 250, 288. Cf. the opinions of Justices Holmes and Brandeis in
Gitlow v. New York,
268 U.S. 652, 672, and Whitney v. California,
274 U.S. 357, 372.
[Footnote 4] The cases are collected by
MR. JUSTICE BLACK in Speiser v. Randall,
357 U.S. 513, 530. And see, Eaton v. Price,
364 U.S. 263, 274-276.
MR. JUSTICE CLARK, concurring in the result.
In Bute v. Illinois,
U.S. 640 (1948), this Court found no special circumstances requiring the
appointment of counsel but stated that "if these charges had been capital
charges, the court would have been required, both by the state statute and the
decisions of this Court interpreting the Fourteenth Amendment, to take some
such steps." Id., at 674. Prior to that case I find no language in any
cases in this Court indicating that appointment of counsel in all capital cases
was required by the Fourteenth Amendment.1 At the next Term of the Court Mr. Justice Reed
revealed that the Court was divided as to noncapital cases but that "the
due process clause... requires counsel for all persons charged with serious
crimes...." Uveges v. Pennsylvania,
U.S. 437, 441 (1948). Finally, in Hamilton v. Alabama,
U.S. 52 (1961), we said that "[w]hen one pleads to a capital charge
without benefit of counsel, we do not stop to determine whether prejudice
resulted." Id., at 55. [372
U.S. 335, 348]
That the Sixth Amendment requires appointment of counsel in "all
criminal prosecutions" is clear, both from the language of the Amendment
and from this Court's interpretation. See Johnson v. Zerbst,
U.S. 458 (1938). It is equally clear from the above cases, all decided
after Betts v. Brady,
U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in
all prosecutions for capital crimes. The Court's decision today, then, does no
more than erase a distinction which has no basis in logic and an increasingly
eroded basis in authority. In Kinsella v. United States ex rel. Singleton,
U.S. 234 (1960), we specifically rejected any constitutional distinction
between capital and noncapital offenses as regards congressional power to
provide for court-martial trials of civilian dependents of armed forces
personnel. Having previously held that civilian dependents could not
constitutionally be deprived of the protections of Article III and the Fifth
and Sixth Amendments in capital cases, Reid v. Covert,
U.S. 1 (1957), we held that the same result must follow in noncapital
cases. Indeed, our opinion there foreshadowed the decision today,2 as we noted that:
"Obviously Fourteenth Amendment cases dealing with state action have no
application here, but if [372
U.S. 335, 349]
they did, we believe that to deprive civilian
dependents of the safeguards of a jury trial here... would be as invalid under
those cases as it would be in cases of a capital nature."
361 U.S., at 246
I must conclude here, as in Kinsella, supra, that the Constitution makes no
distinction between capital and noncapital cases. The Fourteenth Amendment
requires due process of law for the deprival of "liberty" just as for
deprival of "life," and there cannot constitutionally be a difference
in the quality of the process based merely upon a supposed difference in the
sanction involved. How can the Fourteenth Amendment tolerate a procedure which
it condemns in capital cases on the ground that deprival of liberty may be less
onerous than deprival of life — a value judgment not universally
accepted3 — or that only
the latter deprival is irrevocable? I can find no acceptable rationalization
for such a result, and I therefore concur in the judgment of the Court.
[Footnote 1] It might, however, be said that
there is such an implication in Avery v. Alabama,
U.S. 444 (1940), a capital case in which counsel had been appointed but in
which the petitioner claimed a denial of "effective" assistance. The
Court in affirming noted that "[h]ad petitioner been denied any
representation of counsel at all, such a clear violation of the Fourteenth
Amendment's guarantee of assistance of counsel would have required reversal of
his conviction." Id., at 445. No "special circumstances" were
recited by the Court, but in citing Powell v. Alabama,
U.S. 45 (1932), as authority for its dictum it appears that the Court did
not rely solely on the capital nature of the offense.
[Footnote 2] Portents of today's decision
may be found as well in Griffin v. Illinois,
U.S. 12 (1956), and Ferguson v. Georgia,
U.S. 570 (1961). In Griffin, a noncapital case, we held that the
petitioner's constitutional rights were violated by the State's procedure,
which provided free transcripts for indigent defendants only in capital cases.
In Ferguson we struck down a state practice denying the appellant the effective
assistance of counsel, cautioning that "[o]ur decision does not turn on
the facts that the appellant was tried for a capital offense and was
represented by employed counsel. The command of the Fourteenth Amendment also
applies in the case of an accused tried for a noncapital offense, or
represented by appointed counsel."
365 U.S., at 596.
[Footnote 3] See, e. g., Barzun, In Favor of
Capital Punishment, 31 American Scholar 181, 188-189 (1962).
MR. JUSTICE HARLAN, concurring.
I agree that Betts v. Brady should be overruled, but consider it entitled to
a more respectful burial than has been accorded, at least on the part of those
of us who were not on the Court when that case was decided.
I cannot subscribe to the view that Betts v. Brady represented "an
abrupt break with its own well-considered precedents." Ante, p. 344. In
1932, in Powell v. Alabama,
U.S. 45, a capital case, this Court declared that under the particular
facts there presented — "the ignorance and illiteracy of the
defendants, their youth, the circumstances of public hostility... and above all
that they stood in deadly peril of their lives" (
287 U.S., at 71) — the state court had a duty to assign counsel for
[372 U.S. 335, 350]
the trial as a necessary requisite of due process of law. It is evident that
these limiting facts were not added to the opinion as an afterthought; they
were repeatedly emphasized, see
U.S., at 52, 57-58, 71, and were clearly regarded as important to the
Thus when this Court, a decade later, decided Betts v. Brady, it did no more
than to admit of the possible existence of special circumstances in noncapital
as well as capital trials, while at the same time insisting that such
circumstances be shown in order to establish a denial of due process. The right
to appointed counsel had been recognized as being considerably broader in
federal prosecutions, see Johnson v. Zerbst,
U.S. 458, but to have imposed these requirements on the States would indeed
have been "an abrupt break" with the almost immediate past. The
declaration that the right to appointed counsel in state prosecutions, as
established in Powell v. Alabama, was not limited to capital cases was in truth
not a departure from, but an extension of, existing precedent.
The principles declared in Powell and in Betts, however, have had a troubled
journey throughout the years that have followed first the one case and then the
other. Even by the time of the Betts decision, dictum in at least one of the
Court's opinions had indicated that there was an absolute right to the services
of counsel in the trial of state capital cases.1 Such dicta continued to appear in subsequent
decisions,2 and any lingering
doubts were finally eliminated by the holding of Hamilton v. Alabama,
In noncapital cases, the "special circumstances" rule has
continued to exist in form while its substance has been substantially and
steadily eroded. In the first decade after Betts, there were cases in which the
Court [372 U.S. 335, 351]
found special circumstances to be lacking, but usually by a sharply
divided vote.3 However, no such
decision has been cited to us, and I have found none, after Quicksall v.
339 U.S. 660, decided in 1950. At the same time, there have been not a few
cases in which special circumstances were found in little or nothing more than
the "complexity" of the legal questions presented, although those
questions were often of only routine difficulty.4 The Court has come to recognize, in other words,
that the mere existence of a serious criminal charge constituted in itself
special circumstances requiring the services of counsel at trial. In truth the
Betts v. Brady rule is no longer a reality.
This evolution, however, appears not to have been fully recognized by many
state courts, in this instance charged with the front-line responsibility for
the enforcement of constitutional rights.5 To continue a rule which is honored by this Court
only with lip service is not a healthy thing and in the long run will do
disservice to the federal system.
The special circumstances rule has been formally abandoned in capital cases,
and the time has now come when it should be similarly abandoned in noncapital
cases, at least as to offenses which, as the one involved here, carry the
possibility of a substantial prison sentence. (Whether the rule should extend
to all criminal cases need not now be decided.) This indeed does no more than
to make explicit something that has long since been foreshadowed in our
decisions. [372 U.S. 335,
In agreeing with the Court that the right to counsel in a case such as this
should now be expressly recognized as a fundamental right embraced in the
Fourteenth Amendment, I wish to make a further observation. When we hold a
right or immunity, valid against the Federal Government, to be "implicit
in the concept of ordered liberty"6 and thus valid against the States, I do not read
our past decisions to suggest that by so holding, we automatically carry over
an entire body of federal law and apply it in full sweep to the States. Any
such concept would disregard the frequently wide disparity between the
legitimate interests of the States and of the Federal Government, the divergent
problems that they face, and the significantly different consequences of their
actions. Cf. Roth v. United States,
U.S. 476, 496-508 (separate opinion of this writer). In what is done today
I do not understand the Court to depart from the principles laid down in Palko
U.S. 319, or to embrace the concept that the Fourteenth Amendment
"incorporates" the Sixth Amendment as such.
On these premises I join in the judgment of the Court.
[Footnote 1] Avery v. Alabama,
308 U.S. 444, 445.
[Footnote 2] E. g., Bute v. Illinois,
333 U.S. 640, 674 ; Uveges v. Pennsylvania,
335 U.S. 437, 441.
[Footnote 3] E. g., Foster v. Illinois,
332 U.S. 134 ; Bute v. Illinois,
333 U.S. 640 ; Gryger v. Burke,
334 U.S. 728.
[Footnote 4] E. g., Williams v. Kaiser,
323 U.S. 471 ; Hudson v. North Carolina,
363 U.S. 697 ; Chewning v. Cunningham,
368 U.S. 443.
[Footnote 5] See, e. g., Common wealth ex rel.
Simon v. Maroney, 405 Pa. 562, 176 A. 2d 94 (1961); Shaffer v. Warden, 211 Md.
635, 126 A. 2d 573 (1956); Henderson v. Bannan, 256 F.2d 363 (C. A. 6th Cir.
[Footnote 6] Palko v. Connecticut,
302 U.S. 319, 325. [372 U.S.
Comment | Contents