Introduction

"In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."
- U.S. Const. amend VI

This guide is designed to introduce researchers to the chief sources of information related to indigent criminal defense in the United States. It covers both primary and secondary sources, as well as original source material located here at the Georgetown Law Library.

The Law Before Gideon

For most of U.S. history, the vast majority of state criminal defendants did not have the right to a court-appointed attorney. While the federal courts and several states did guarantee representation, several decisions from this era repeatedly confirmed that the states had no Constitutional obligation to pay for attorneys to represent indigent defendants.

• The Scottsboro Case (Powell v. Alabama, 287 US 45 (1932))
  One of the most important cases, and certainly the most infamous, of the pre-Gideon era was Powell v. Alabama. Powell involved the wrongful convictions of nine young African-American men accused of raping two white women on a freight train. The defendants could not afford representation, and only inadequate representation was provided by the state. Eight of the defendants were sentenced to death; the ninth to life in prison. After the first stage of trials, the Supreme Court reversed the convictions, holding that counsel must be provided in capital cases.
  
• • Scholarly Articles about Scottsboro
  • • N. Jeremi Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 Cardozo L. Rev. 1315 (2003).
    • Matthew C. Heise, The Scottsboro Boys Trials and Judge Horton's Ex Parte Meeting: History's Verdict, 7 Dartmouth L.J. 208 (2009).
    • Douglas O. Linder, Without Fear or Favor: Judge James Edwin Horton and the Trial of the Scottsboro Boys, 68 UMKC L. Rev. 549 (1999).
    • William G. Ross, The Constitutional Significance of the Scottsboro Cases, 28 Cumb. L. Rev. 591 (1997).

• Original source documents relating to Scottsboro
  
• • Scottsboro Defense Committee Papers
    Collection of documents from committee, formed by the NAACP to assist the Scottsboro defendants.
    
  • Report on the Scottsboro, Ala. Case
    Contemporaneous account of the case produced by the ACLU.

• Books, movies, and other popular media about Scottsboro
• • Scottsboro: a Novel ( 1st ed ed. 2008) PS3572.I38 S36 2008 
  • Scottsboro: a Tragedy of the American South ( Rev. ed. 2007) KF224.S34 C3 2007
    ACLU History: Scottsboro Boys
  • Scottsboro: an American Tragedy KF224.S34 S36 2005 DVD Video
    
    

• Other Pre-Gideon Cases
• • Betts v. Brady, 316 U.S. 455 (1942)
    Betts specifically held that indigent state defendants did not have the right to court-provided counsel. Overruled by Gideon. 
  • Johnson v. Zerbst,304 U.S. 458 (1938)
    Verified the right to court-appointed counsel in federal, but not state, prosecutions.
  • Hamilton v. Alabama, 368 U.S. 52 (1961)
    Held that in a capital case, the right to counsel attaches at the time of arraignment.
    
    

• Scholarship on pre-Gideon law and history
• • William O. Douglas, Right To Counsel, The, 45 Minn. L. Rev. 693 (1960).
  • Yale Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on "The Most Pervasive Right" of an Accused, 30 The University of Chicago Law Review 1–77 (1962).
  • Stacey L. Reed, Look Back at Gideon v. Wainwright after Forty Years: An Examination of the Illusory Sixth Amendment Right to Assistance of Counsel, 52 Drake L. Rev. 47 (2003).

Gideon v. Wainwright

The watershed mark in the history of indigent criminal defense in the United States is the Supreme Court's 1963 decision in Gideon v. Wainwright. The Court's holding that all criminal defendants had the right to be represented by counsel, even if they could not afford an attorney, marked the beginning of the due process "rights revolution" of the Warren Court.

• Gideon v. Wainwright, 372 U.S. 335 (1963)
  Clarence Earl Gideon was accused of breaking into a pool hall and stealing money from the cash register and jukebox. The trial judge refused to appoint an attorney to represent him, and Gideon was unable to afford his own counsel. He represented himself, and was convicted of breaking and entering. While in prison, he filed a petition for habeas corpus against the Florida official charged with running the state's corrections system. The Supreme Court reversed and remanded his conviction, holding that the Florida court erred in not supplying him with an attorney. Gideon was later acquitted on retrial.

• Gideon scholarship
• • Bruce R. Jacob, Memories of and Reflections about Gideon v. Wainwright, 33 Stetson L. Rev. 181 (2003).
  • Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const. L.Q. 625 (1985).
  • Abe Krash & Anthony Lewis, The History of Gideon v. Wainwright, 10 Pace L. Rev. 379 (1990).
  • Henry P. Monaghan, Gideon's Army: Student Soldiers, 45 B.U. L. Rev. 445 (1965).
  •  William W. Jr Nicholls & Roland E. Smith, The Impact of Gideon v. Wainwright and Miranda v. Arizona in a State Appellate Court: The Conduit Is Not Passive, 22 Jurimetrics J. 307 (1981).

• Original source documents relating to Gideon

• • The case files for Gideon v. Cochran/Wainwright 372 U.S. 335 (1963) are at the National Archives I, Record Group 267: Records of the Supreme Court of the United States, 1772 - 2007, Series Appellate Jurisdiction Case Files, 1792 - 2006, Appellate Jurisdiction Case File Gideon v. Wainwright, 01/08/1962 - 04/12/1963.

  • National Archives, online public access: Petition for a Writ of Certiorari from Clarence Earl Gideon to the Supreme Court of the United States, 01/05/1962.

  • Gideon v. Cochran/Wainwright 372 U.S. 335 (1963) case files (complete set of photocopies), Clinton Bamberger papers, Gideon v. Cochran, NEJL-033
  
  
  • Oral history interview with Abe Krash by Victor Geminiani, NEJL Oral History Project, March 17, 1993, transcript and video recording.

  • Oral history interview with Bruce Jacob by Victor Geminiani, NEJL Oral History Project, July 9, 1993, transcript and video recording.

  • Oral history interview with Anthony Lewis by Victor Geminiani, NEJL Oral History Project, March 18, 1993, transcript and video recording.

  • David Rintels Collection, Gideon's Trumpet script and stills, NEJL 046.
    

    The collection includes a copy of the script for Gideon's Trumpet (1980), signed by screenwriter David Rintels, and stills of actors Henry Fonda, John Houseman, Jose Ferrer, among others, portraying characters in the film. The movie was originally shown on CBS as part of the Hallmark Hall of Fame.

• Books, movies, and other popular media about Gideon
• • Gideon's Trumpet (1964) KF228.G53 L49 1964 
  • Gideon's Trumpet (2007) KF224.G5 G53 2007 DVD Video
  • One Hundred Americans Making Constitutional History : a Biographical History KF4549 .O54 2004

After Gideon

• Post-Gideon Cases
• • Argersinger v. Hamlin, 407 U.S. 25 (1972)
    Held that a defendant may not be subjected to imprisonment without the aid of counsel, regardless of whether the offense was a misdemeanor or felony, and regardless of whether the offense qualified for a jury trial.
    
  • Scott v. Illinois, 440 U.S. 367 (1979)
    Held that the state was not obligated to provide counsel when the conviction did not result in actual imprisonment, despite the fact that imprisonment was a potential penalty.
  • Massiah v. United States, 377 U.S. 201 (1964)
    Held that the right to counsel attaches when a suspect is indicted.
  • Alabama v. Shelton, 535 U.S. 654 (2002)
    The right to counsel attaches when a court imposes a suspended prison sentence.
  • Rothgery v. Gillespie County, 554 U.S. 191 (2008)
    The right to counsel attached at the time of an initial hearing, when a defendant learned of the potential loss of liberty under the charges.
    

• Post-Gideon scholarship
• • Gideon's Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 Harvard Law Review 2062–2079 (2000).
    
  • Tracey L. Meares, What's Wrong with Gideon, 70 The University of Chicago Law Review 215–231 (2003).
  • Lee Silverstein, Defense of the Poor in Criminal Cases in American State Courts, 3 vols (1965) KF9646.Z95 A4 1965
  • Robert L. Spangenberg & Marea L. Beeman, Indigent Defense Systems in the United States, 58 Law and Contemporary Problems 31–49 (1995), (last visited Feb 4, 2013).
    

• Post-Gideon Original Source Documents

• • General Charles L. Decker/NLADA Collection, SPECL, manuscript collections. 

    General Charles L. Decker (1906-1983) directed the NLADA National Defender Project from 1963 until 1971. The project, which was funded by the Ford Foundation, had been conceptualized prior to the Gideon v. Wainwright decision, and was charged with surveying existing defender systems, and with establishing demonstration defender programs and new defender offices or systems in areas where none existed, as well as with improving existing defender offices or systems. Decker, a Georgetown Law alumnus, donated his extensive papers documenting the National Defender Project, as well as some of his personal papers, to the GULL.

  • The NEJL also houses collections from several former directors of the NLADA Defender Division, and from other advocates in the public defender movement, including:

  • • Mary M. Broderick Papers (NEJL 055)
    • Cait Clarke Papers (NEJL 056)
    • James Doherty Papers (NEJL 054)
    • Nancy Albert Goldberg Papers (NEJL-028)
    • Marshall Hartman Papers (NEJL 059)
    • Sheldon Portman Papers (NEJL 054)
    • Richard Wilson Papers (NEJL 003)
  
  
• Public Defenders and Court Appointment Systems
  

• Statistical Information
  
• • Bureau of Justice Statistics: Indigent Defense Systems

Indigent Defense Organizations

• National Legal Aid & Defender Association (NLADA)
• American Council of Chief Defenders (NLADA)
  
• American Civil Liberties Union (ACLU)
• Federal Public Defender

Created 02/2013 (TV)